Osgoode Hall Law Journal
Volume 25, Number 3 (Fall 1987)
Article 1
Contempt by Scandalizing the Court: A Political
History on the First Hundred Years
Douglas Hay
Osgoode Hall Law School of York University, [email protected]
Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj
Article
Citation Information
Hay, Douglas. "Contempt by Scandalizing the Court: A Political History on the First Hundred Years." Osgoode Hall Law Journal 25.3
(1987) : 431-484.
http://digitalcommons.osgoode.yorku.ca/ohlj/vol25/iss3/1
This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall
Law Journal by an authorized administrator of Osgoode Digital Commons.
CONTEMPT BY SCANDALIZING
THE COURT: A POLITICAL HISTORY
OF THE FIRST HUNDRED YEARS*
By DOUGLAS HAY**
If an alarming Practice has been once brought to light, and inquired into, and not
condemned, although clearly unwarrantable; it will look to posterity as if, upon
examination, it were found to be legal, or, at most, but dubious.
"Candor" (1764)1
With palsy'd hand, shall justice hold the scale,
And o'er a judge, court complaisance prevail;
Satire's strong dose the malady requires,
I write - when lo! the bench indignant fires;
Each hoary head erects its load of hair,
Their furs all bristle, and their eye-balls glare,
In rage they roar, "With rev'rend ermine sport!
"Seize, seize him, tipstaff! - 'Tis contempt of court."
Paul Whitehead2
Copyright, Douglas Hay, 1987.
Associate Professor, Law and History, Osgoode Hall Law School and York University.
This paper was presented at the Osgoode Faculty Symposium, summer 1987; a revised version,
with some different emphases, will appear in a forthcoming book. The research was supported
by Osgoode Hall Law School. My thanks to Norma Eakin, Reid Rusonik, Earl Stuart and John
Lefurgey for much assistance, and to John Beattie, Nicholas Rogers, Blain Baker and Paul
Romney for comments. I am grateful for the assistance of Ruth Paley, who made it possible
for me to use Public Record Office materials at a time when I could not travel to London. All
errors are mine.
1 A Letterfrom Candor, to the PublicAdvertiser, 2nd ed. (London: Almon,1764) at 27-28
[hereinafter Candor].See infra, text at note 74.
2 An Epistle to Dr. Thompson (London: W. Owen, [1756?]), as quoted by William Bingley,
in The North Briton, No. 75 (12 November 1768) and in The Extraordinary Case of William
Bingley, Bookseller (London: [Bingley], 1770; reprinted New York: Garland, 1974) at 43.
OSGOODE HALL LAW JOURNAL
[VOL 25 NO. 3
Figure 1
The protagonists in the courts in the 1760s: John Wilkes versus
Chief Justice Lord Mansfield (and friend). The other supporting
figures probably are Chief Justice Charles Pratt, Lord Temple, and
Lord Halifax. (From Arms and Slavery, printed with a letter of John
Wilkes to his electorate 18 June 1768. Guildhall Library, London:
Broadsides 29.3.)
1987]
Scandalizing the Court
I. INTRODUCTION
The power to punish contempts of court by strangers -those
not parties to the proceedings nor present in court - without jury
trial was established in 1765 by the celebrated case of R. v. Almon.
It is also the leading case on the contempt of scandalizing the court,
an offence which throughout its history has arisen when free
comment about judges has become too free for the taste of the
bench! Scandalizing the court does not concern interference with
pending legal proceedings through prior publication, which is also
punishable summarily, on the same precedent. Rather, it involves
attacking the dignity or impartiality of the court after the fact, or in
connection with no particular case at all.4 Usually the offender has
been a journalist, although sometimes it has been a lawyer or even
a cabinet minister. Almon's Case is characteristic: Almon published
in 1764 a pamphlet whose anonymous author accused the Lord
Chief Justice, Lord Mansfield, of acting officiously and arbitrarily. It
questioned his honesty, impartiality, and respect for precedent and
suggested he was politically biased.5 The history of the offence
before, during, and after this critical case shows it to be closely allied
to major constitutional arguments about the free expression of
political opinion, including criticisms of the judiciary, and attempts
to suppress that free expression. The doctrine was also contentious
3 R v. Almon (1765) in Notes of Opinions and JudgmentsDelivered in Different Courts,by the
Right HonourableSirJohn Eardley Wilmot (London: Hansard, 1802) [hereinafter Wilmot] at 243.
The actual expression appears to have been used first by Lord Chancellor Hardwicke in Roach
v. Garven (1742), 2 Atk, 469, 26 E., 683 (H.C.Ch) [also cited as The St. James Evening Post
Case, hereinafter cited to Atk.].
4 Almon is still cited for "the basic principle" that the doctrine is necessary to maintain
faith in the administration of justice: see Gordon Borrie and Nigel Lowe, The Law of Contempt
(London: Butterworths, 1973) at 152; CJ.Miller, Contempt of Court (London: Paul Elek, 1976)
at 182.
5 A Letter ConcerningLibels, Warrants, the Seizure of Papers,and Sureties for the Peaceor
Behaviour..., 3rd ed.(London: Almon, 1765). On the various editions, and the evidence that
this was the edition for which Almon was first attached, see infra, notes 88, 89, 93, 101, 107, 110.
The most recent account of Almon himself is Deborah D. Rogers, Bookseller as Rogue: John
Almon and the Politics of Eighteenth-Centuty Publishing (New York: Peter Lang, c.1986).
OSGOODE HALL LAW JOURNAL
[yCOL. 25 NO. 3
because many of the constitutional protections of jury trial were (and
are) denied the accused.6
For reasons that will be discussed, judgment was never
delivered in R. v. Almon itself, but the opinion prepared by Justice
Wilmot of King's Bench nonetheless is the foundation of the modern
doctrine of contempt for scandalizing the court. 7 Wilmot's brother
judges apparently would have agreed to his judgment. They shared
his opinion that the summary contempt power against strangers out
of court, including those who scandalized the court, was coeval with
the foundations of the common law. In 1768 a number of printers
and publishers suffered attachments and punishment for offending
the judges. One particularly obstreperous offender, William Bingley,
was jailed for two years because he refused to answer interrogatories
in what he called "Lord Mansfield's High Commission Court of Star
Chamber."8 While Bingley was still in King's Bench Prison, the first
edition of volume 4 of the Commentaries on the Laws of England,
by Wilmot's friend Blackstone, endorsed the doctrine; its future
seemed assured. 9
But was Almon good law? Over eighty years ago, Arthur E.
Hughes emphasized that Wilmot was speaking obiter. A few years
later, Sir John Fox argued persuasively that Wilmot had cited not a
single clear precedent, that leading jurists disputed the doctrine at
the time, that no cases in which it was applied to strangers could be
6The use of attachments and interrogatories in proceedings for contempt of court entailed
an officer of the court addressing questions to the accused, who was obliged to answer on oath.
There was no jury. If the answers were unsatisfactory to the judges, punishment followed (by
fine and imprisonment or other means), until the contempt had been purged by the transgressor
either apologizing to the court or serving the sentence. The procedure is described by Bingley
(infra, note 137), and by Sir John Fox (see infra, note 10 at Chapter 6).
7 The leading modern case relies on Almon for "the history, purpose, and extent" of the
power. R. v. Gray (1900), 2 QB 36 at 40-41. The only other precedent cited in Gray is Roach
v. Garvan (supra, note 3; infra, text at note 22).
8 John Wilmot, Memoirs of the Life of the Right HonourableSir John Eardley Wilmot..., 2nd
ed. (London: Nichols, 1811) at 79-80. Star Chamber, abolished in 1641, was a by-word for
judicial oppression in the eighteenth century. Mansfield was Chief Justice of King's Bench 175688. On Bingley, see infra text at notes 118-142 and illustration.
9 Sir William Blackstone, Commentaries on the Laws of England, 1st ed., vol. 4 (Oxford:
Clarendon Press, 1769) at 280-85, especially 282. For Blackstone's probable reliance on Wilmot's
unpublished opinion, see Fox, infra, note 10 (1927) at 21; (1909), 253-54.
Scandalizing the Court
1987]
found dated earlier than 1721, and that no reported English case
cited Wilmot's opinion favourably until 1821. It was only in the later
nineteenth century that the English bench embraced the doctrine
and through occasional reaffirmation entrenched it in the common
law.10
Since then, it has been resurrected from time to time by
outraged judges or equally concerned Attorneys General in England
and the Commonwealth.
On the face of it, this is a curious chronology. Twentiethcentury judges have repeatedly defended the summary contempt
power, usually by citing Almon, as a most ancient and indispensable
prop to the dignity of justice and the authority of the courts. Yet,
the power is found to have originated recently (in historical terms)
and to have been justified originally by rhet6ric rather than
precedent.
Even more striking is the fact that this new and
apparently indispensable power fell into desuetude for more than a
century after Almon's Case: it appears that no one suffered under
it from the time of Bingley's release from prison in 1770, his
contempt still unpurged, until 1873.11
In considering this history I do not re-examine many of Fox's
principal findings.! 2 Rather, I give an account of some of the
10
Arthur E. Hughes, "Contempt of Court and the Press" (1900), 16 L.Q.Rev. 292 at 296.
Fox had been Senior Master of the Supreme Court, Chancery Division. His articles also
appeared in the L.Q.Rev.: 'The King v. Almon"(1908) 24 L.Q.Rev. 184, 266; The Summary
Process to Punish Contempt" (1909) 25 L.Q.Rev. 238, 354; "Eccentricities of the Law of
Contempt of Court" (1920) 36 L.Q.Rev. 394; "The Nature of Contempt of Court" (1921) 37
L.Q.Rev. 191; 'The Practice in Contempt of Court Cases" (1922) 38 L.Q.Rev. 185; 'The Writ
of Attachment" (1924) 40 L.Q.Rev. 43. Fox summarized his findings and published additional
material as The History of Contempt of Court the Form of Trial and the Mode of Punishment
(Oxford: Clarendon Press, 1927; reprinted London: Professional Books, 1972) [hereinafter Fox].
11 Fox, supra, note 10 at 114. Certainly there appear to be no reported cases, and this is
probably an offence with a high incidence of reporting. It is possible, of course, that unreported
cases occurred: see note 156 infra. Strictly speaking, Bingley was gaoled for the contempt of not
answering the interrogatories that would have been used to establish his contempt of
scandalizing the court, but other printers and vendors were punished after interrogatories in the
same year.
12 Fox argues that in early times such contempts were tried by juries, that until the
seventeenth century the penalty was fine or imprisonment but not both, and that the power
does not appear to have been used against strangers to the proceedings before 1721: supra, note
10 at 116-17. To expand Fox's account of the eighteenth and nineteenth century authorities
requires extensive work in the manuscript records of King's Bench and some other courts, in
other archival materials, and in the contemporary press. The manuscript sources appear to
substantiate his argument: I review them in a forthcoming article.
436
OSGOODE HALL LAW JOURNAL
[COL 25 NO. 3
political, legal, and social circumstances surrounding the eighteenthcentury cases. Their context explains why the summary power to
punish contempts by strangers, and particularly scandalous reflections
on the probity of the judiciary, should emerge in the eighteenth
century only to disappear for a hundred years.
Since its
reappearance there has been considerably less freedom, in England
and Canada,for the press to comment on the political implications
of judicial decisions than there was in the England of George 111.13
Why that should be the case can best be approached through an
examination of the fates of Almon, Bingley, and Lord Mansfield.
II. BEFORE ALMON'S CASE
To understand the history of scandalizing the court in the
eighteenth century, it is necessary to keep in mind some functional
and political inter-relationships of the law of that period respecting
jury powers, criminal libel, and contempt. Judges have always felt
a strong need to protect the dignity of their courts and of
themselves as the embodiment of the majesty and learning of the
law. Many of them have wanted strong coercive weapons to deal
with hostile criticism from outside their courtrooms, whether the
criticism is of a particular decision, or in general terms. In the
eighteenth century, the general law of seditious libel came to be the
principal means of controlling the publication of criticism of those
in authority, whether ministers of the Crown, or judges. From the
late seventeenth century, governments had successively used licensing
13
Although lacking in precedent, Almon's Case eventually became one itself. Later articles
will deal with the nineteenth and twentieth-century political history of scandalizing the court in
England, the United States, and Canada. In the first two jurisdictions the doctrine hardly exists
any longer, but in Canada it has particularly flourished. The reason for this is a subject of
some interest. (For an outline see Jacob S. Ziegel, "Some Aspects of the Law of Contempt of
Court in Canada, England, and the United States" (1959-60) 6 McGill LJ. 229.) Summary
punishment for scandalizing the court, and indeed the offence itself, has a peculiar history. It
is ill-suited to a democracy and there is something distinctive and disturbing about the courts,
or the political culture, or both, of the times and the countries where it has been much used.
For a recent comment on Canada see Robert Martin, "Criticising the Judges" (1982) 28 McGill
LJ. 1; on Australia see M.R Chesterman, Public Criticism of Judges, Research Paper No. 5,
Reference on Contempt of Court, Australia Law Reform Commission (1984), and H. Burmester,
"Scandalizing the Judges" (1985) 15 Melbourne University LJ. 313.
1987]
Scandalizing the Court
of printers, then (after licensing ended) prosecutions for treason, and
then (after the Treason Act of 1696), a new doctrine of seditious
libel. The new doctrine had been constructed largely by Chief
Justice Holt out of a certain amount of precedent and a lot of policy
argument. The merit of seditious libel, in the eyes of authority, was
that it effected and confirmed the removal of several issues from
juries.1 4
Juries nonetheless still presented problems for the Crown.
Bushell's Case (1670) made possible the independence of jurors from
dictation from the bench. Trials of ordinary felons may not have
been much affected, but the possibility of acquittals through jury
nullification was a problem to both Tory and Whig governments
mounting political prosecutions1 5 The intense party conflict of the
early eighteenth century, and particularly the acquittal of one
opposition pamphleteer in 1729, made it important to the
government to be able to perfect jury packing.1 6 As important as
jury packing (or prevention of packing by the opposition) was,
another common expedient was also used enthusiastically by
Attorneys General for almost two hundred years. They prosecuted
seditious libels not on indictment but by means of a distinctive
criminal information, filed by themselves ex officio in the Court of
King's Bench. The ex officio information had several advantages
over an indictment: speed, horrendous cost to the defendant, and
flexibility. Proceedings could be begun against a printer or author
and then suspended indefinitely. Perhaps most important, the
14 The most recent account stresses the innovations made in the law at this time: Philip
Hamburger, "The Development of the Law of Seditious Libel and the Control of the Press"
(1985) 37 Stan. L Rev. 661.
15 Vaughn 135, 124 E. 1006. On Bushell's Case there is a large literature, some of it
summarized in the most recent account: Thomas Andrew Green, Verdict According to
Conscience: Perspectiveson the English Criminal Trial Jury 1200-1800 (Chicago: University of
Chicago Press, 1985), chapter 6. [hereinafter Green]. On the use of other means to overawe
juries in ordinary criminal trials see John H. Langbein, "The Criminal Trial Before the
Lawyers"(1978) 45 U. Chic. L. Rev. 263.
16 The Jury Act 1730 (U.K.) 3 George II, c.25, intended by the Tory opposition to make
packing more difficult, was amended in an apparently innocuous but effective way to make
packing easier in cases of seditious libel and other misdemeanours: see Hay, 'The Class
Composition of the Palladium of Liberty. Trial Jurors in the Eighteenth Century", J.Cockbum
and T.Green eds., Twelve Good Men and True: The Criminal TrialJuy in England1200-1800
(Princton, N.J.: Princeton University Press, 1988), 305-57 at 317-20, 354-55.
OSGOODB HALL LAW JOURNAL
[voi. 25 NO. 3
criminal information avoided one problem of prosecutions on
indictment: there was no grand jury that first had to find the charge
to be fit for trial.17 Grand juries with particular political sympathies
(whether Tory-Jacobite or Whig) could kill a political prosecution
18
before it began, if the government had to rely on an indictment.
Opposition speakers condemned both jury packing and such
ex officio informations. Jury packing in political trials was unsuccessfully attacked through legislation. 9 Ex officio informations were
condemned as unconstitutional - an offspring of Star Chamber that
had wormed its way into the Court of King's Bench. The judges
found them to be sound in law nonetheless. But some judges and
Attorneys General were also attracted to an extension of the power
of contempt. The early eighteenth-century history is still unclear, but
it appears that they began experimenting with summary attachment
for contempts, including general criticisms of the court by strangers,
in the 1720s, perhaps because party controversy about political
prosecutions was virulent at that time.
During a ten-year period in a series of cases, all of which
involved Attorney General Sir Robert Raymond (later Lord Chief
Justice) and Attorney General Sir Philip Yorke (later Lord
Chancellor Hardwicke), the jury was dispensed with. 20 Lord
Raymond declared in 1731 that "it was beyond all question, that
attachments [and interrogatories] have been granted in these cases..."
He cited only one case, of 1723, prosecuted by himself as Attorney
General. 21 In a Chancery case in the 1740s, Lord Hardwicke again
17
Moreover, the trial jury could always be a "special" one, of higher status. For examples
of the eighteenth-century ambivalence towards petty juries, depending upon whether they were
in agreement with the bench, see ibid. at 305-08; for special juries, 318-19, 353.
18 See my forthcoming book, Cases on the Crown Side of King's Bench, 1740-1800 (Staffs.
Hist.Soc.Collections), "Introduction", on the use and political significance of the information ev
officio.
19
Supra, note 16.
20 1 am currently doing research on the reported and unreported contempt cases of this
period, but the statements in the text rely on Fox, supra, note 10 at 111-14.
21
Anonym (1731), 2 Barn. KB. 43, 94 E.LR 345. Ironically, the Chief Justice in the earlier
cases (R.v.Barber (1721) 1 Strange 444, 93 E.R. 624, R.vMiddleton (or Wyatt) (1723) Fortescue
201, 92 E.R. 818 (K.B.)) was Sir John Pratt, father of Lord Camden (see infra). But see Eeles,
infra note 73 at 16-18.
Scandalizing the Court
1987]
declared with only the most vague kind of authority the broad right
of courts of equity to punish scandals against them. Although they
were clearly obiter, his words became authoritative in courts of
equity
2
The reasons for this apparently unprecedented development
are still obscure. The general context is undoubtedly the very rapid
increase in the periodical press at this time, first in London, then in
the provinces, and the intensity of political controversy the press
sustained. Chief Justice Holt had already responded to the Crown's
loss of other powers (licensing, treason prosecutions) by making new
law in seditious libel cases. Raymond and Hardwicke apparently
found it appropriate to be similarly innovative in those cases in
which the courts or individual judges were themselves the subjects
of criticism. The undoubted advantages of attachments for contempt
over all other forms of proceeding were the elimination of those
unpredictable juries, both grand and petty, and the speed with which
the court could proceed. Nor were Hardwicke or Raymond the men
to shrink from such an access of judicial power in the name of the
authority of the law. They were the authors and users of the
Waltham BlackAct (9 George I, c.22), the most penal capital statute
of the eighteenth century, and were parties to its wide, rather than
narrow, construction. They were also involved in the principal
prosecutions of Jacobites and suspected Jacobites, political
prosecutions of great severity and public controversy. Their
development of a new and useful form of contempt is consistent
with their central role in the political repression effected by the
Walpolian Whig regime, including its contempt of restraints on the
use of the criminal law against its opponents.2
From 1731 there was apparently no attachment for
scandalizing the court for a period of some thirty years, during which
a Whig ascendancy was established and sustained.2 4 By the 1760s the
22 Roach v. Garvan, supra, note 3 at 471.
See Fox, supra, note 10 at 22, 102-06, 117, and
Hughes, supra, note 10 at 296.
23 See E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (New York:
Pantheon, 1975) at 207-12 and passim.
24
Fox discusses the use of attachments in the 18th and 19th centuries, supra, note 10 at
22-26 and 106-14.
440
OSGOODE HALL LAW JOURNAL
[VOL 25 NO. 3
doctrine might thus be considered one of recent origin, already
abandoned, and thus unlikely to be law. When the doctrine was
brought to life by the extraordinary events surrounding John Wilkes,
his publisher Almon, and his enthusiastic follower William Bingley,
its constitutionality finally became a central issue.
III. WILKES AND THE JUDGES: 1763-1768
In the 1760s there was an eruption of published political
controversy of a quantity and incandescence not seen since the first
decades of the century. George III, coming as a young and
determined monarch to the throne in 1760, soon installed his
Scottish tutor and favourite, Lord Bute, as his chief minister. The
great Whig families who had dominated English politics for decades
found themselves in opposition. When Bute's conventional use of
a bought press confirmed his power, the Whigs hired pamphleteers
and publishers in turn. The bitterness of party controversy might
itself have caused the legal limits of published comment to be tested;
the fact that John Wilkes and his followers became involved ensured
it.25
The process in R. v. Almon was originally headed R. v.
Wilkes, for the original contempt proceedings concerned comments
on the state prosecution of John Wilkes. Wilkes, the most able
writer of the opposition publicists, was supported financially and
tactically by Lord Temple, one of the richest of the Whig peers.
Almon was Wilkes' friend as well as his publisher. In an age when
only one-sixth of adult males had the vote, Wilkes and his followers
took an advanced view of popular politics, and of freedom of
political expression at a time when even Whig magnates who were
devotees of "the people" against the Crown considered publication
of parliamentary debates to be a dangerous breach of parliamentary
privilege. Many historians credit Wilkes with the most significant
25 For this paragraph (and much of what follows) see the excellent account by Robert R.
Rea, The English Press in Politics1760-1774 (Lincoln, Neb.: University of Nebraska Press, 1963).
1987]
Scandalizing the Court
attacks on oligarchic and26aristocratic power in the decade when such
power was at its height.
Wilkes thus became a critical figure in the process by which
Parliament became accustomed, through the press, to the idea that
it had to answer to some of the nation between elections. He and
his followers, a number of whom were leading solicitors and
barristers, exploited the courts as well as the hustings and the press
in attracting support and attacking governments. Although a Member
of Parliament, Wilkes was arrested and sent to the Tower in 1763
on a general search warrant when his periodical The North Briton
reflected on the King in its forty-fifth issue.27 He and many printers
and publishers successfully sued and established that such warrants
had no basis in law. He was expelled by Parliament for his writings
and his outlawry and was triumphantly re-elected, to the chagrin of
most members. Most important, he and other "Wilkites" helped
establish, through effrontery and litigation, the effective freedom to
publish critical comments on governments, and by 1771 the legal
right to publish even Parliamentary debates. In their own time it
appeared that the Wilkites were equally successful in establishing a
de facto right to criticize judges, but as the curious subsequent
history of Almon's Case shows, this was not a lasting achievement.
26 On Wilkite politics, the role of the press in the 1760s, and the structure of politics in
the new reign, see especially Rea, supra, note 25; John Brewer, Party Ideology and Popular
Politics at the Accession of George I (Cambridge: Cambridge University Press, 1976); Paul
Langford, The FirstRockingham Administration 1765-1766 (London: Oxford University Press
1973); George Rude, Wilkes andLiberty:A Social Study of1763-1774 (Oxford: Oxford University
Press, 1962); Brewer, "English Radicalism in the Age of George III" in J.GA.Pocock, ed., Three
British Revolutions: 1641, 1688 1776 (Princton NJ.: Princeton University Press, 1980); Brewer,
"Commercialization and Politics", in Neil McKendrick, John Brewer, J.H.Plumb, eds., The Birth
of a Consumer Society: The Commercialization of Eighteenth-Century England (London:
Hutchinson, 1983). For the Wilkites' conception and use of the law, see Brewer, 'The Wilkites
and the Law, 1763-74", in John Brewer and John Styles, eds., An UngovernablePeople (New
Brunswick, NJ.: Rutgers University Press, 1980). For Almon's friendship with Wilkes, see
Deborah D. Rogers, supra, note 5, chapter 2.
27 The principal offending passages argued that "...every friend of his country must lament
that a prince...can be brought to give the sanction of his sacred name to the most odious
measures, and to the most unjustifiable, public declarations, from a throne ever renowned for
truth, honour, and unsullied virtue...." The prerogative should not be used with "blind favour
and partiality....The people too have their prerogatives, and...Freedom is the English subject's
Prerogative." On the significance of the journal see George Nobbe, North Briton: A Study in
PoliticalPropaganda(New York Columbia University Press, 1939; reprinted New York. AMS
Press, 1966).
OSGOODE HALL LAW JOURNAL
[VOL 25 NO. 3
By January 1765, when contempt proceedings were begun
against John Almon, Wilkes had, for approximately two years, been
at the centre of some of the most celebrated constitutional cases in
English history. He was arrested along with many others associated
with the North Briton in April 1763 on the general warrant from the
Secretaries of State (although the step had been considered since at
least February). Wilkes was freed in May on habeas corpus to
enormous popular applause. He began his lawsuit against the
Secretaries of State and led the campaign of Wilkite lawyers and
publicists by which other printers and publishers recovered damages
from the government and its agents. In December 1763 a jury
awarded Wilkes himself £3000 against one of the Secretaries of
State. In all, the general warrants issue probably cost the government
some £100,000 in the courts, an immense sum at this period. 28 The
following year printers and publishers were successful in further
actions: in the most famous case, Entick v. Carrington,Chief Justice
Pratt of Common Pleas authoritatively denied that governments
could use general warrants to go on fishing expeditions in private
29
papers.
By this time, however, Wilkes and a number of his supporters
had suffered setbacks at the hands of both Parliament and the
courts. In December 1763 the North Briton no.45 had been burned
by the common hangman at the order of Parliament. In January
1764 Wilkes, who had taken refuge in France, had been expelled
from Parliament after being found in contempt for not attending at
the demand of the Commons. In February, immediately after the
government barely outvoted the opposition on the issue of general
warrants, Wilkes was convicted in absentia for seditious and
blasphemous libel before Lord Mansfield in King's Bench. When
28 In terms of modem purchasing power, many millions of dollars.
29 19 State Trials 1044. The phrase in fact occurs in Candor,supra, note 1 at 31: "It is a
fishing for evidence, to the disquiet of all men, and to the violation of every private right; and
it is the most odious and infamous act, of the worst sort of inquisitions, by the worst sort of
men, in the most enslaved countries: It is, in short, putting a man to the torture, and forcing
him to give evidence against himself." On this pamphlet, attributed in whole or part to Pratt,
see infra.
198'7]
Scandalizing the Court
Wilkes refused to return to England for sentence, he was outlawed. 3
The trial was contentious for several reasons. Mansfield agreed in
Chambers to a Crown request to amend the wording of the criminal
information against Wilkes; there were allegations of false notices of
adjournment to assist in packing the jury; and the jurors had
pamphlets against Wilkes in their hands during the trial itself
(although the defence similarly supplied them with reading
material)3 1
A few months later, in July, two publishers of the North
Briton, Williams and Kearsley, were convicted on a seditious libel
charge before Mansfield by compliant juries. There were to be
verdicts for Wilkites in the coming months in general warrants
lawsuits, but the criminal convictions of Williams and Kearsley had,
by the summer of 1764, intimidated the press. Almon wrote to
Temple that
the violence and partiality of the Chief Justice in those causes was not only
astonishing, but is shocking to think of.... The carrying this favourite point of
convicting the North Briton in the City, has struck such a panic into the printys, etc.,
that I am afraid I now stand alone in the resolution to publish with spirit.,
It was at this critical juncture that Almon published the first of two
pamphlets condemning Lord Mansfield's conduct in the North Briton
cases; the second of these pamphlets was the occasion of Almon's
attachment for contempt. But to understand the significance and the
outcome of Almon's Case we must look at the bench of the 1760s.
For it was not simply because he presided in King's Bench, where
the Attorney General prosecuted political offenders, that the Lord
Chief Justice was the judge vilified by the anonymous author of the
pamphlets. It was also because beside the overt political conflicts
associated with Wilkes' spectacular trajectory through English public
30 The sedition charge related to the North Briton article already quoted supra, note 27.
The blasphemy charge concerned The Essay on Woman, his rather boring obscene parody of
Pope, twelve copies of which he had been privately printing, the government obtained a copy
for purposes of prosecution through bribery of his printers.
31 Rea, supra, note 25 at 81-82. R. v. Phillippset al. (1764), 3 Burr. 1564.
32 [George Grenville], Additional Grenville Papers 1763-1765, ed. John R.G.Tomlinson
(Manchester. Manchester University Press, 1962)[hereinafter Grenville], vol. 2 at 428-31. See
also Horace Walpole, Correspondence,ed. W.S. Lewis (New Haven: Yale University Press, 48
vols., 1961-1984)[hereinafter Walpole, Correspondence]vol. 38 at 433 note 30.
444
OSGOODE HALL LAW JOURNAL
[VoL 25 NO. 3
life there ran a corresponding politics of the judiciary. The
protagonists were Mansfield, and the Chief Justice of Common
Pleas, Charles Pratt, who later became Lord Chancellor Camden.
Pratt now has the lesser (although a respectable) professional
reputation, in part because he sat only from 1762 to 1766 in
Common Pleas and from 1766 to January 1770 as Lord Chancellor.
In his own time he was as much esteemed by the profession, and
infinitely more popular with the public, than the Chief Justice of
King's Bench.33 The younger son of a deceased Lord Chief Justice,
Pratt had languished on circuit for many years without a brief, but
once recognized showed great abilities. His promotions he owed to
William Pitt, an old school friend, and he undoubtedly advised Pitt
often on legal and political issues. As a judge and peer Pratt was
strongly identified with the more advanced Whigs in Parliament. He
became a political symbol: a statesman suspicious of the executive,
of Jacobites, and of arbitrary measures; a model (to his admirers)
of a judge who upheld the principles of judicial independence, strong
juries, and punctilious adherence to the strict forms of the common
law.
34
Those principles had not always been in the forefront of the
minds of Whig ministers during their hegemony in the first half of
33 Mansfield's reputation loomed unnaturally large in the later eighteenth century not
only
because he sat for so long and shaped the modem law in so many important ways, but also
because he epitomized the increasing conservatism (and wealth) of the bench in a period of
reaction to democratic claims: C.H.S.Fifoot, Lord Mansfield (Oxford: Clarendon Press, 1936)
at 50; Daniel Duman, The JudicialBench in England1727-1875: the Reshaping of a Professional
Elite (London: Royal Historical Society, 1982). The judicial praise of him (and judges are
usually generous to fellow judges) became deafening. Even after the Chief Justice's death, Lord
Kenyon and his brothers left a defendant languishing in jail because he had dared defile the
memory of Lord Mansfield. (See my forthcoming account of R. v. Waddington, infra, note 34)
By the time of Eldon, Mansfield was being slighted by traditionalists who repeated the charges
about his disrespect for common law (infra). Both Pratt and Mansfield, like most of the great
eighteenth-century judicial politicians, have yet to receive adequate biographical treatment.
34 In 1772 Pratt was widely attacked for inconsistency in defending the use of the Royal
Prerogative to prevent the export of grain by suspending the Corn Act, 11 George II c.22,
calling it "but forty days' tyranny at the outside." It is an interesting exception to his more usual
suspicion of the powers of the Crown. Interference with the free operation of markets in
foodstuffs in order to ensure the diet of the poor was Tudor and Stuart (indeed, medieval)
policy, probably one of the few Stuart policies of which Pratt approved. However, it was a
policy explicitly repudiated by the majority of Parliamentarians in 1772, most of whom already
had embraced the latest opinion on the subject, soon to be give classic form by one Adam
Smith. See D. Hay, "The State and the Market: Lord Kenyon and Mr Waddington"
(forthcoming).
1987]
Scandalizing the Court
the century. Such men had been responsible for the Riot Act, the
Waltham Black Act, mass prosecutions after the Stuart invasion in
1745, and numerous prosecutions of the press on ex officio
informations, as well as the new doctrine on contempt. 5 But Pratt
showed from the beginning of his legal career that he was guided by
a belief that the executive should be controlled both by law and by
the preservation of critical political comment.
As Attorney General between 1757 and 1761 Pratt exhibited
only one ex officio information against an opposition writer. Perhaps
the unanimity of wartime had ended much of the oppositionist
politics that attracted such informations. But it seems clear that
Pratt was also manifesting, by his reticence in using the most
oppressive form of criminal prosecution, an attitude to constitutional
liberties that was a deep aspect of his own character.3 6 While
Attorney General, he also drafted a controversial bill to extend the
Habeas Corpus Act to detentions in other than criminal cases,
legislation which would have given relief to wrongfully impressed
seamen and other unfortunates. 7 When he became a judge, Pratt
castigated judicial discretion. In his first term on the bench he
argued that "Such discretion is contrary to the genius of the common
law of England, and would be more fit for an Eastern monarchy
than for this land of liberty."38 Most important, Pratt was the
highest legal representative to criticize the powers that King's Bench
had claimed for judges in dealing with cases of seditious libel. His
stand was arguably the single most significant contribution to political
liberties in the eighteenth century, one that became an article of
faith with Wilkites and that was closely connected with the law of
contempt.
35
Supra, note 20.
36 On the case, R. v. Shebbeare, see infra, text at note 44. See also his treatment of Wilkie,
infra, text at note 100.
377The King opposed Pratt's bill as an attack on royal prerogative, and it was lost when
Lord Mansfield, speaking eloquently against it in the Lords, helped to defeat the measure, with
the assistance of Lord Chancellor Hardwicke. The substance of Pratt's reform was not enacted
until 1816, under the regency, as 56 George III c.100. The controversy, too complicated to
address here, was an issue in Almnon's Case: infra, text at note 115. I deal with it elsewhere.
38
Parisv. Salkeld (1762), 2 Wils. KB. 137 at 138, 95 3 B.RL 729.
446
OSGOODE HALL LAW JOURNAL
[vcoy 25 NO. 3
He first raised the issue in 1752, when as counsel for the
defence in a political case, R. v. Owen, he had argued that juries
had the competence to decide, by their general verdicts, the entire
issue in cases of libel. 3 9 The bench did not agree. Lord Lee, the
Chief Justice, told the jurors that they were to determine only
whether the defendant was responsible for publication and whether
the thinly disguised names in the publication meant whom they
clearly did. Under these instructions, whether it was a libel would
subsequently be decided by the court, and neither that point nor
intent were issues to be considered by the jury. This was the law on
libel which was central to published political debate in England for
most of the eighteenth century. It had been crystallized out of
restoration materials by Lord Holt between 1696 and 1706, and
summarized by Lord Raymond in 1731.40 But it was an intensely
contested doctrine, and Pratt, in this case and throughout his career,
urged its unconstitutionality.
Owen was in fact the first case since Raymond's 1731 judgment
to test in court the range of issues open to the jury.41 Pratt's
rhetoric was typical of what he was to say on many later occasions:
The Attorney-General tells a free people that, happen what will, they shall never
complain. But, gentlemen, you will not surrender your rights, and abandon yer duty.
The fatal blow to English liberty will not be inflicted by an English jury.
Also prophetic was the response from his audience when the jury
brought in a verdict of not guilty: a great shout of exultation in the
court. When the Chief Justice tried to demand a special verdict as
to publishing alone, and the foreman defied him, there was a shout
"much louder than before", and the Court broke up.43 Pratt held to
his position in 1758 when, as Pitt's newly-appointed Attorney
General, he prosecuted John Shebbeare on an ex officio information.
39
R. v. Owen (1752), 18 State Trials 1203 at 1227.
40 See Hamburger, supra, note 14.
41 Green, supra, note 15 at 322.
42 Lord Campell, infra, note 63 at 359.
43 18 State Trials 1203 at 1228-9.
1987]
Scandalizing the Court
He emphasized his view of the law by addressing himself to the jury
rather than the bench. Pratt stated yet again, this time before Lord
Mansfield, now Chief Justice, that the criminality of the alleged libel
was a question of fact for the jury alone. 44 In the 1760s Pratt (later
Lord Camden) 45 was the most senior leading lawyer to hold this
opinion, and probably the only judge. It was emphatically not the
opinion of Mansfield.
Their argument revolved around the significance of the
decision of a divided court in the Seven Bishop's Case of 1688, the
last great Stuart state trial. 46 Mansfield, like his predecessors, relied
on the statement of the law by the majority. Those who took
Camden's position, however, considered that the majority were tools
of James II. They preferred the dissent of Justice Powell to the
effect that "as he saw no falsehood or malice in it, that it was no
libel." The majority had held otherwise; "but their opinion has ever
since been held infamous, and his [Powell's] in the utmost
veneration, and will send down his name with honour to posterity,
as long as history lasts." 47 Powell had been removed from the
bench by the angry king. Because of the division in the court,
however, the whole issue of libel had, in any case, been left to the
jury.
Camden's position on the issue of libel was one aspect of his
general position: that in cases of profound constitutional importance, particularly concerning the liberty of the citizen to criticize
government and thereby keep it in check, precedents in favour of an
accused person had to be scrupulously observed. Hence his strictures
on broad judicial discretion.
But precedents favourable to
government that had issued from the mouths of the Stuart bench
44 18 Dictionary of NationalBiography 2; 1 Annual Register 99; 20 State Trials 708; James
K. Foster, "Smollett's Pamphleteering Foe Shebbeare" (1942) 57 Modem LanguageAssociation
of America, Publications 1053 at 1087.
45 For convenience he is called hereafter Lord Camden.
46 12 State trials 183. Green, supra, note 15 at 320-21.
47An Enquiry, infra, text at note 85 at 12.
OSGOODE HALL LAW JOURNAL
[vcoL 25 No. 3
were to be despised.4 Underlying both arguments was Camden's
larger proposition: that in all such cases the final judge had to be
the people, constituted as a fairly chosen jury, not judges appointed
on the advice of ministers of the Crown.
Mansfield was the proponent of a different reading of the
law of libel: that Hanoverian judges, unlike Stuart judges, enjoyed
security of tenure and thus did not need to be kept in check by the
scrutiny of a jury. And judicial discretion, he emphasized in one of
the most sensitive of the Wilkite trials, was discretion bounded by
law.49 For Camden, such an answer begged the question. When
Camden was made Chief Justice of Common Pleas in 1762, England
thus had two Chief Justices with diametrically opposed views on
what was to be a burning legal and political issue in the crisis over
Wilkes, and indeed in English political life for the next forty years.
When Pratt was made Lord Camden in 1765, the differences
between the Chief Justices began to be aired in the House of Lords
as well as in their courtrooms.
Camden's interpretation of the law of libel had practical
significance: if recognized, it would remove from the hands of the
judges one of their most powerful instruments for punishing seditious
libels, particularly when juries were recalcitrant. Its political
significance lay in the fact that Mansfield was accused by his critics
of being not simply dependent on the King's government, but part
of it. Mansfield had been Solicitor General and then Attorney
General from 1742 to 1756, and leader of the House of Commons,
the proteg6 of Newcastle and Hardwicke. ° Chief Justice of King's
Bench from 1756, he was also in the Cabinet from 1757 to 1765.
This was the same Cabinet which ordered the Attorney General to
48 Supra, text at note 38. In Endck v. Carrington (supra, note 29), Camden dismissed the
government's use of general warrants as "a power claimed by no other magistrate whatever
(Sroggs, CJ., always excepted)...usage of these warrants since the Revolution...[is] contrary to
law." See also infra, text at note 153, for Camden's challenge to Mansfield to discuss the
historical period from which his precedents came.
49 R. v.
Mikes (1770) 4 Burr. 2527 at 2539, 98 E.Rt 327 at 334 (KB.) [hereinafter cited to
Burr.].
50 Fifoot, supra, note 33 at 36-39.
Scandalizing the Court
1987]
prosecute libellous journalists in his court.51 Mansfield was known
to endorse wholly the government's attack on Wilkes, not least
because, both before and after leaving the Cabinet in 1765, he spoke
to that effect in debates in the House of Lords. Of his colleagues'
criminal proceedings against Wilkes he publicly claimed to have no
knowledge 52 However, this argument was less than convincing
because, as Attorney General, he had professed ignorance of Cabinet
decisions to which he had clearly been privy.
The issues raised by Wilkes brought the divergent interpretations of libel law by Camden and Mansfield fully to public view. It
was to be a public issue between the two for decades. Camden lived
long enough to help enact something similar to his interpretation of
the law in the form of Fox's Libel Act of 1792 (32 George Ill c.60).
Mansfield, who as Solicitor General helped prosecute Owen,5 3 did
not live to see that enactment, but he was the most eloquent
opponent, throughout his judicial career, of the doctrine the Act
contained.
Moreover, from the 1750s to the 1780s Mansfield
opposed Camden on many other legal issues with political
implications: the proposed extension of habeas corpus, legislation for
the unruly American colonies, the denial of a legislature in the new
colony of Quebec.5 4 Some of these differences flowed from his
personal connections and background, and his enemies. Pitt, who
was the close friend of Camden, was a constant opponent of
Mansfield. However, it was Camden's role in the cases involving
Wilkes that gave Mansfield a more immediate and personal reason
for intensely disliking the Chief in Common Pleas.
Mansfield's presence in the Cabinet room was not unprecedented: Hardwicke, when
Chief Justice, sat there briefly, and Mansfield was used as a precedent for Lord Ellenborough
between February 1806 and March 1807. The implications for the administration of justice were
unclear, but potentially serious: the convention that the English Attorney General does not take
cabinet instructions about prosecutions is a twentieth-century innovation. See J.LJ. Edwards,The
Law Officers of the Crown (London: Sweet and Maxwell, 1964) Chapters 10, 11. As already
noted, even after leaving the cabinet, in 1765, Mansfield continued to speak in the House of
Lords on such burning issues as taxing America and John Wilkes (Fifoot, supra, note 33 at 40).
52
R. v.
lkes, supra, note 49 at 2562.
53 See supra, text accompanying note 39.
54 Supra, note 37; Walpole, Correspondence (supra,note 32) vol.41 at 304 note 10.
450
OSGOODE HALL LAW JOURNAL
[you 25 NO. 3
Wilkes soon recognized Mansfield as a serious and most
useful enemy. First, Mansfield was a Scot, and like most successful
Scots in London, he probably endured the contempt of Englishmen
more easily in the knowledge that much of the contempt arose from
envy.55 But in the early 1760s the position of Scots in England was
even less comfortable than usual, because the Wilkite hatred directed
at the King's Scottish favourite, Bute, exploited the national
prejudice. In the ensuing press war, Mansfield came to share some
of the minister's opprobrium on that ground alone. The fact that
Mansfield's family was Jacobite was a convenient way to suggest that
the government was using a Chief Justice to erect a tyranny similar
to that of the Stuarts.5 6 Secondly, Mansfield was head of the court
in which informations ex officio, including those against libels, were
prosecuted, and anything he did that might appear to aid the
prosecution resulted in criticism. The fact that he strongly upheld a
doctrine on libels that his fellow Chief Justice in Common Pleas
strongly denounced made him doubly suspect. Finally, opposition
writers stressed the fact that Mansfield was unequivocally identified
with the administration.
Mansfield's reverence for order, obedience, deference, and
sexual rectitude5 7 all caused him to despise Wilkes and what he
represented. This opinion was exacerbated by the fact that Wilkes
was becoming a hero to a great many humbler citizens, especially
those of London and Middlesex. When Wilkes was finally sentenced
in 1768 for his seditious and blasphemous libels of 1763, Mansfield
passed a heavy sentence, given the offences and the circumstances:
a fine of £1000, sureties of £2000 for seven years, and twenty-two
months of imprisonment. But the Lord Chief Justice considered it
a moderate punishment for such a "Scoundrel", and complained
privately that "it was impossible for him to condemn ...[Wilkes] to
the Pillory, because the Attorney-General did not demand it."58 The
55
Fifoot, supra, note 33 at 33-34.
56 Bid. at 38; and see infra at note 77.
57 Wilkes, a rake, had written a pornographic parody of Pope. See supra, note 30.
58
Rea, supra, note 25 at 154. Rea notes Mansfield's immense political ignorance of the
likely consequences of pillorying Wilkes at that time.
1987]
Scandalizing the Court
irregularities at the trial enraged and shocked many of Wilkes'
supporters. 59
But one did not have to be a Wilkite in 1765 to harbour
reservations about Mansfield as a judge. Many lawyers muttered
about the new Chief Justice and his attitude toward the common
law. A century before the Judicature Acts, Mansfield's apparent
willingness to attempt to do substantial justice in King's Bench
aroused deep concern. He was not deferential to precedents he
considered objectionable:
His technique was inexhaustible. An inconvenient decision would appear on
examination to be based on a fallacy, to emerge as an isolated exception to a major,
if unperceived, current of judicial opinion, to be the product of an obsolet 3
environment, even, if need be, the misconception of a careless or ignorant reporter.ou
His critics feared that broad principles in the hands of an activist
judge, particularly one trained in the civil law, could lead to that
very discretion which Camden so pointedly deplored from his own
bench. 61 By the early 1760s the constitutional implications of this
discretion were serious cause for concern. If the protection of
English liberty depended on scrupulous regard for the forms and
precedents of the common law, a political judge, who was himself in
the government, might be tempted to tamper with forms and to
ignore precedents, to achieve his ends. Mansfield was accused of
doing this in private law; but the most serious concern and the most
outspoken criticism
arose when he was believed to be doing it in
62
criminal law.
Camden had by this date become closely associated with
Wilkite victories in the courts. According to Lord Campbell, when
59
Supra, text at note 31.
60 Fifoot, supra, note 33 at 78.
61 Supra, text at note 38.
62 Fifoot, supra, note 33 at 170-97, 226ff. describes in some detail the anxiety, partly based
on professional territoriality and vested interest, that grew about Mansfield's experiments in
private law, and was expressed in part in Fearne's Essay on Contingent Remainders (1772).
Fifoot makes a brief reference to Junius, but fails to acknowledge the importance of the
constitutional fears of the 1760s in forming Mansfield's contemporary reputation. In this respect
the Candor pamphlets were central, and anticipated Junius' better-known sarcasm by five years
(infra, text at note 148).
OSGOODE HALL LAW JOURNAL
[VOL. 25 NO. 3
Camden was made a judge in 1762, he was appointed to Common
Pleas in the expectation that his popular sympathies would not be
a danger there.63 It was the less important of the two principal
common law courts, one in which state trials were unlikely to take
place. If that was the intention, it was a miscalculation, for Wilkes
and his followers, who turned to the Court of Common Pleas early
in their struggles against the government, gave full exercise to
Camden's political opinions. Camden did not particularly like
Wilkes, but he recognized the political principles he pursued in
litigation.6 4 It was Camden who initially issued habeas corpus for
Wilkes in early May 1763 (an unusual process in Common Pleas)
and freed him a few days later, to enormous popular acclaim.
Camden presided over the first general warrants case in July, when
he blasted the government's claims and told the Attorney General,
"I find you don't care to trust either me or the jury."65 He
confirmed the large damages against the King's Messengers in
November. In December Camden presided over several other
successful lawsuits against the government, including Wilkes' own
successful lawsuit against the Secretaries of State, and he maintained
verdicts in several of these cases in May 1764. In July, he gave the
definitive judgment against general warrants in Entick v. Cardngton.66
Camden's sympathies were abundantly clear. Aroused by the
issue of general warrants, his language was often pungent: "the jury
saw before them a magistrate exercising arbitrary power over all the
King's subjects - violating Magna Carta, attempting to destroy the
liberty of the kingdom";67 "To enter a man's house by virtue of a
nameless warrant, in order to procure evidence, is worse than the
Spanish Inquisition; a law under which no Englishman would wish to
live an hour; it was a most daring public attack made on the liberty
63
John Lord Cambell, Lives of the Lord Chancellors, 5th ed., vol.6 (London: John Murray,
1868) at 366; a belief referred to in Candor, supra, note 1 at 41.
64 Rea, supra, note 25 at 156.
65 kid., at 61.
66 Supra, note 29.
67
Huckle v. Money, 2 Wils. KB. 206 at 207; 95 ER 768 at 769.
1987]
Scandalizing the Court
of the subject';68 "If jurisdictions should declare my opinion
erroneous, I submit as will become me, and kiss the rod; but I must
say, I shall always consider it a rod of iron for the chastisement of
the people of Great Britain."69 He was apparently convinced, as
were many other Whigs, that the events of the mid-1760s marked a
dangerous move away from the Revolution principles of 1688 toward
arbitrary government, away from the paramountcy of law to that of
executive convenience.
Camden's interpretation of the law, and his manner of doing
so, aroused the concern of some old Whigs with connections to the
government, or of more authoritarian bent. Lord Hardwicke had
been alarmed at the freedom Camden gave his juries and complained
that he made them "judges of law as well as of fact, which, if 7it0
comes to be established, will have extraordinary consequences."
But it was Mansfield who had become a bitter political enemy,
especially after Wilkes v. Wood and Leach v. Money had humiliated
his colleagues in the government. He declared that "no man had
ever behaved so shamefully as Lord Chief Justice Pratt had done ...
for that he had denied to His Majesty that justice which every71 petty
justice of the peace would have granted to a highwayman."
Mansfield's anger on behalf of the Crown had a personal side also.
While he was suffering popular opprobrium for his part in the
criminal prosecutions of the printers of the North Briton,72 Camden
was a hero in London and much of the rest of the country. The
Mayor and Corporation presented the Chief Justice of Common
Pleas with the freedom of the City of London in a gold box. They
commissioned his portrait by Reynolds, which was hung, with a
flattering inscription, in the Guildhall. Gold boxes and freedoms also
68 Ibid.
69
A magazine account of Pratt's speech in Wilkes v. Wood, not given in the report in State
Trials: see Walpole, Correspondence (supra,note 32) vol. 41 at 91 note 8.
70 Supra, note 25 at 61. Hardwicke also ardently wished the Lord Chancellorship for his
son, the Attorney General, Philip Yorke. Camden was the other principal candidate, favoured
by Pitt.
71 Ibid. at 68-69.
72 Supra, text at note 32.
OSGOODE HALL LAW JOURNAL
[VOL. 25 No. 3
came from Exeter and Norwich, and formal thanks from the citizens
of Dublin and Bath. Busts and prints were on sale throughout the
country. Tourists flocked to his court. 73
It was in this context that opposition writers explicitly praised
Camden for his integrity, mildness, and respect for constitutional
principle: this in contrast to the opportunist, oppressive, foreign and
ministerial creature they saw in Mansfield, a judge who pushed
discretion beyond conscionable limits. The harshest critic of
Mansfield was Almon's anonymous author, who wrote under the
name "Candor" and "Father of Candor". He accused Mansfield of
oppressing Wilkes by ignoring or misreading English law. That
charge prompted Mansfield and his colleagues in the cabinet to
reach for the summary powers of contempt.
III. SCANDALIZING MANSFIELD: THE "CANDOR"
PAMPHLETS
A Letter from Candor to the Public Advertiser, which appeared
in September 1764, was a masterpiece of sustained irony purporting
to defend Mansfield and the administration. 74 In fact it condemned
ex officio informations and the government's use of them. The
pamphlet also condemned the proceedings of King's Bench on
Wilkes' habeas corpus application, Mansfield's position on the issue
of jury rights over libels, and his intimate connections with the
government. 75 But the attack, couched as praise, was also very
personal. Candor compared Mansfield to "that great and famous
73 Campbell, supra, note 63, vol.6 at 372; Walpole, Correspondence(supra, note 32), vol.38,
at 333; Henry S. Eeles, Lord Chancellor Camden and HisFamily (London: Philip Allan, 1934)
at 75-77.
74
See supra, note 1. Irony was a common expedient in face of the threat of prosecutions
for seditious libel. Green, supra, note 15 at 325, mistakenly interprets the pamphlet as a proadministration tract, as does Leonard W. Levy, Legacy of Suppression:Freedom of Speech and
Press in EarlyAmerican History (Cambridge, Mass.: Harvard University Press, 1964) at 148-49;
Levy, Emergence of a FreePress (New York: Oxford University Press, 1985) at 147-8. See Rea,
supra, note 25 at 110-11, and Notes and Queries, 2nd ser., no.111 at 121 (February 13, 1858),
(and the pamphlets), for the compelling evidence for the identity of Candor and The Father
of Candor, or at least their common purpose. See also infra, note 143.
75 Candor,supra, note 1 at 34, 40-41, 44.
1987]
Scandalizing the Court
Judge," Jeffreys, showing that he was relying in part on Jeffreys'
judgments for his doctrine with respect to libel. He also lauded the
Chief Justice as a man whose smooth "accomplishments of Art and
Eloquence" cleverly concealed a policy identical to that of the more
plain-spoken Stuart judge. Jeffreys was a name that had for Whigs
of however conservative a hue, and indeed for most Tories, its
76
modem connotation of monstrous and unlawful judicial oppression.
To point the comparison to Stuart tyranny, Candor made a sly
reference to Mansfield's Jacobite upbringing.77 Above all, Candor
condemned Mansfield as an equity lawyer with civil law background,
a judge who felt unconstrained by the forms and precedents of the
common law courts. Candor congratulated the Chief Justice of
King's Bench as an innovator "who has so much to his reputation
already very greatly shortened
and altered the usual proceedings in
78
trials."
and
all causes
The charge of refusing to follow precedent was important at
this juncture, because it was what Mansfield was accused of doing
in the case of Wilkes. 79 Mansfield's equity, sneered Candor in
irony,
surprisingly softens the Rigor of the old Common Law, and accommodates it more to
the humour and turn of the age. In short, he perceives how little regard the old
adjudications deserve from a change in the times. He is besides so peculiarly acute,
refined, and logical, in his distinctions between cases of Law, which, to ordinary men,
seem to be the same, and to be cases in point; and, in trials by Jury, he is so able in
separating or assembling (as the cause may require) the different parts of the testimony,
and in passing over or slurring one fact as immaterial, and enforcing another as material;
that he never fails of carrying, to every auditor at the time, the appearance of right or
761bid. at 8. Almon later compared Mansfield to "Tresylian, Keyling, Scroggs, Jefferys, and
some others": Almon, Biographica Literary, and PoliticalAnecdotes of Several of the Most
Eminent Persons of the PresentAge (London: London & Seeley, 1797) vol.1 at 229.
77 Candor,supra, note 1 at 11. One of Mansfield's older brothers was created the Earl of
Dunbar by the Old Pretender in exile. Mansfield himself was educated at Westminster School
under the Jacobite Atterbury on the advice of his brother. Fifoot, supra, note 33 at 27.
78 Candor, supra, note 1 at 7. This passage could be represented merely as praise of
Mansfield's undoubtedly useful innovations in the daily administration of cases in King's Bench:
Fifoot, supra, note 33 at chapter 3.
79 See supra, text at note 31, and infra, text at note 130.
456
OSGOODE HALL LAW JOURNAL
[VOL. 25 NO. 3
wrong along with him. What a happiness therefore it is to have one's suit determinc,l
or tried, by a person of so nice a discernment, and of so much judgement and capacity!-
And his memory, suggested Candor, was so marvellous that
Mansfield recapitulated evidence from it alone, "without having much
recourse to his notes, or to the usual dull way of rehearsing it word
for word"; nor did he have to "stick to the letter of old precedents
81
in points of Law" or leave juries to their own conclusions.
Candor's barbed general verdict on the Chief Justice was that
he served the convenient purposes of the government: "But, as the
end of all Law is substantial Justice, if That be obtained, in spite of
old rules or old cases, Is it not so much the better for the subject?
especially if it be compassed in less time, and in a more summary
way."82 The author professed to look forward to the abolition of
juries in all trials, criminal as well as civil:
All important Crown-Prosecutions would then be conducted in the best manner,
according to the will of the Chief Justice of England, who is frequently a Peer himself,
and of great weight with the Ministry, is always a Privy Counsellor, sometimes of the
Cabinet, and intituled to the ear of his Majesty, and of course infinitely above all
prejudice, and every thing else that is low and vulgar. Under such direction, no man
would be found guilty, or lose his life, from error or ignorance. And the Lawyers §ld
it for a maxim, that the King is interested in the life and health of all his subjects.
In such passages contemporaries recognized not only Mansfield, but
also implicit comparisons to Tudor and Stuart tyranny, to Star
Chamber, to summary convictions before magistrates and excise
commissioners - all derogations of the rights of jurors. The author
may also have meant it as a pre-emptive warning to Mansfield not
to try to use the summary power of contempt against the printer or
80 Candor,supra, note 1 at 10-11. Compare Fifoot, supra, test at note 60.
81 Ibid. at 25. In another passage on the same page, Candor made clear that he thought
Mansfield was following "foolish or iniquitous precedents".
82
Ibid. at 10-11.
3 Ibid. at 43-44.
1987]
Scandalizing the Court
publisher.84 The Chief Justice did not, in fact, deign to notice the
pamphlet publicly.
A month later Almon published the even more powerful sequel,
An Enquiry into the Doctrine Lately Propagated,ConcerningLibels,
Warrants, and the Seizure of Papers...in a Letter to Mr. Almon from
the Fatherof Candor. According to the best historian of the subject,
it was the most convincing case for a free press that the public had
yet seen.85 It was a triumph of legal argument and political
propaganda. The pamphlet ran through three editions within three
months, two more in 1765, and was reprinted with additions in 1771.
Horace Walpole, who praised its doctrines, also declared it "the only
tract that ever made me understand law."86 In January 1765 he wrote
a friend, "Though bulky, it is already at its third edition - nor can
all the Court lawyers, Court scribblers, or Court liars, hitherto frame
an answer to it. They nibble at its heels, but cannot fix a tooth in
it."'' As he wrote, the Law Officers of the Crown were preparing
88
an attachment for contempt.
Purporting to be written by a lawyer, the pamphlet was an
extended discussion of King's Bench informations, the scope and
security of habeas corpus, and the doctrine on libels and on general
warrants. The argument was supported by extensive references to
case law, statute, and history. The author vigorously opposed the
notion that everything that could be found in cases under the later
Stuarts was still acceptable, and at the same time warned against the
.4 Apparently last used in a common law court in 1731 (see Fox, supra, note 10 at 114),
the summary way of proceeding by attachment for contempt against a scandalizer of the court
had been raised as a possibility, and rejected, by Common Pleas in 1764 (see infra, text at note
94).
85 Rea, supra, note 25 at 111.
86 Horace Walpole, Memoirs of the Reign of King George the Thir4 (London: G.F. Russel
Barke, ed., 1894) vol. 2 at 26; Walpole, Correspondence,supra, note 32, vol. 38 at 474.
87 Walpole, Correspondence,supra, note 32, vol. 22 at 274-75.
88 This third edition of 1765 (supra, note 5) was later said to be the one attached: [John
Almon], Memoirs of a Late Eminent Bookseller (London: Almon, 1790) at 22 [hereinafter
Memoirs]. However, the issue of which editions were the subject of the two separate attachments
in Almon's Case is confused by the editorial additions in Wilmot (infra, notes 101, 110) and
perhaps by Almon. There were some significant differences between the editions, doubtless on
legal advice. See infra, notes 89, 93, 96.
OSGOODE HALL LAW JOURNAL
[yoL. 25 NO. 3
dangers of innovations on the common law. In some respects,
therefore, Mansfield's anonymous enemy accepted his view of
precedent: that there were principles of the common law that the
cases only illustrated. But the pamphleteer vigorously argued other
points against the Chief Justice: like Candor, he emphasized that
ancient precedents subordinating the executive to law should never
be questioned. And he also warned that judicial innovation in
details comprehensible only to lawyers was a sure way for
governments to escape control: judges uncontrolled by juries and
public opinion were not always to be trusted.
Above all the pamphleteer explicitly castigated "fashionable
doctrines" that enabled governments to obtain convictions by "the
dexterity of a Judge." He emphasized the paramount importance of
juries by warning against the danger of such judges, who, although
now appointed for life, might still yield to "ambition, the desire of
promoting their children, or, if they have no children, of providing
for their nephews...."89 There was a more general danger (perhaps
particularly acute for a judge who sat in the Cabinet room): " The
mere desire of obliging one's friends, which is incident to humanity,
will insensibly warp the very best mens minds, and be apt to give an
improper bias to their judgment."9° Far more pointed, because they
referred to cases in which Mansfield had acted or to common
complaints about him, were passages invoking an hypothetical Chief
Justice. 91 The pamphleteer's Chief Justice helped a minister to assist
a foreign ambassador in silencing a critic; expressed his willingness
to extend unconstitutionally a contentious English statute to
Scotland; looked into briefs and talked to attorneys about their cases
before they came before the court "and by that means ... frequently
... [came] into the court with a bias upon his mind";
informed
89
An Enquiry Into the Doctrine,Lately Propagated Concerning Libels, Warrants,and the
Seizure ofPapers (London: Almon, 1764), at 3, 8, 14. (This is the first edition; subsequent ones
bore the title given in note 5, supra). Mansfield had no children; his nephew, Lord Stormont,
was his designated heir. The emphases here and below are mine: these passages were deleted
from some later editions. Also deleted were passages stating that the author was a lawyer (at
2, 16); that an Attorney General's insistence on securities in cases of alleged libel was "new and
unprecedented" doctrine (at 19); and certain others.
90 Ibid. at 14.
91 kbid. at 125ff.
Scandalizing the Court
1987]
government ministers of a sentence he intended to pass before he
did so;
"by way of introducing an arbitrary government in the
plantations" held that English settlers in America lost the benefit of
the common law92;
"vith a view to the introducing a spirit of
arbitrary and discretionary determination in courts of law, under a
specious pretence of equity, ... from the seat of justice declare[d] he
desired to hear of no case that was determined above 50 years
ago. 93 He amended informations in his court and practised
unwarranted innovations in the rules governing habeas corpus, to the
detriment of criminal defendants. 94 Most damning, he was a judge
who "by unnecessary givings out from the Bench, endeavour[ed] to
blast the repute of Juries with mankind, by pronouncing that the
trial by jury would be the very
worst of all, were it not for the
95
controlling power of judges."
The Father of Candor believed he could draw up a "strong set
of articles" of impeachment based on all these actions:
For, what in a common man is a breach of the law, is also a breach of trust in a Judge,
and where he obstructs justice and changes the law, it is treason at common law. It
would, indeed, be very unhappy for the subjects of this country, if there were a man to
whom any one of these things were applicable: and the Lord have mercy upon the % ion,
if a time should ever come, when they shall all centre in one and the same man.
92 Ibid. at 128. Probably a reference to Mansfield's emphatic opinion that the conquest
of Quebec did not and should not sweep away French law there: Grenville supra, note 32, vol.
2 at 476-77; Walpole, Correspondence,supra, note 32, vol. 41 at 312, at notes 12, 13.
93 This last point is from the 4th ed. of the Letter (1765), at 108; it does not appear in the
first edition of 1764 (Enquiry, supra, note 89).
94 References to Mansfield's dealing with the release from custody, and subsequent
prosecution, of Wilkes (supra, text at notes 31, 64).
95 Enquiry,supra, note 89 at 128; the words following "mankind" are from the 4th edition
(supra, note 93) at 108; I have changed the tense throughout from the conditional.
96
Enquiry, supra, note 89 at 128. The insults to Scotland and to Scots were of course
repeated: in the event of such tyranny, the author would even be prepared to flee with a certain
noble Law-Lord "to ultima Thule, which, by the shiver with which he spoke it, I guess must be
Scotland, the very northern scrag, or bleakest barebone of the Island. A man would fly any
where in such case" (at 130; moved to 30 in the 4th edition, where it did not accompany any
other passages referable to Mansfield).
OSGOODE HALL LAW JOURNAL
[VOL. 25 No. 3
And the Father of Candor showed some of his son's gift for irony
in affirming that it was essential to prevent the debasement of judges
lest reverence for them and the laws should perish.97
Mansfield probably blamed Camden in large measure for the
words of both Candor and his Father, and not only because the
pamphlets expressed Camden's views with respect to libels, general
warrants, ex officio informations, and judicial discretion.98 For
contemporaries believed that Camden was in fact involved in the
writing of one or both of the Candor pamphlets. Many attributed
the second one to John Dunning, who was Almon's counsel, with
the assistance of Lord Camden. Almon at various times later said
that Camden was "supposed" to have written it, to have given "much
assistance" to the author. Some historians have suggested that it
was a joint production of Camden and his half-brother (or nephew),
a former master in chancery.
Thus, when King's Bench reached
for the summary power of contempt against a stranger's reflection
on the court in Almon's Case, the stranger was widely believed to
be, and possibly was, the other Chief Justice of England. Mansfield
971]bid. at 131.
98 Candor quoted Camden replying to a citation of Mansfield's strictures on juries, as
saying "Why do you cite such cases before me, I have been bred up in other principles, and am
now too old to change them." And he reported that Camden, as Attorney General Pratt,
directly addressed Mansfield in Shebbeare's trial to the effect, "your Lordship well knows...the
Jury, in matter of libel, are Judges of the Law as well as the Fact...", emphasizing that Mansfield
did not contradict him (Candor,supra, note 1 at 40-41). The Father of Candor also explicitly
contrasted Camden's scrupulously fair prosecution of Shebbeare to the prosecution of Wilkes,
whom he asserted committed a much less serious libel (Enquiry,supra, note 89 at 34). Camden's
views on judicial discretion (supra,text at note 38) were hailed by his admirers: See Case, infra,
note 120 at 33; Another Letter, infra, note 143 at 33. Compare also note 29 (supra)with text at
note 68.
99 The assertion that Lord Camden was involved was widespread in the eighteenth and
early nineteenth centuries. It was used by the defence in a libel trial of 1806: R. v. Hart and
White, 30 State Trials 1274. Greaves, another former Master in Chancery, is also suggested as
a joint author. Other candidates have been Lord Temple, and Sir Philip Francis. Rea thinks
either Dunning or Camden could have written it, and Almon noted "It certainly contained the
whole of his Lordship's doctrine concerning libels." Burke, writing in 1770, thought it possible
that Camden also was the author. See Another Letter, infra, note 143; Notes and Queries, 2nd
series no.113 at 161 (February 27, 1858), no.116 at 241 (March 20, 1858);Rea, supra, note 25
at 113; Fox, supra, note 10 at 6; Herman Merivale and Joseph Parkes, eds., Memoirs of Sir
PhilipFrancis (London: Longmans, Green, 1867) at 72ff; Almon, Anecdotes, supra, note 76,
vol. 1 at 225, 244; Edmund Burke in T.W. Copeland et al, ed., Correspondence (Cambridge
University Press, 1958-1978) vol.2 at 161, letter of 23 September 1770.
1987]
Scandalizingthe Court
and his brother Wilmot likely considered Camden to be, at the very
least, an unindicted co-conspirator.
V. AVENGING MANSFIELD: R. v. ALMON (1765)
Camden, not surprisingly, apparently had little regard for the
new doctrine of scandalizing the court. When a pro-administration
printer published an accusation that Camden's own court had been
"precipitate", "inconsiderate", "injudicious", and "erroneous" in
releasing Wilkes on habeas corpus, he was made to show cause why
there should not be an attachment against him, but the rule was
never made absolute by Camden. Almon's counsel later stressed the
point. °
The proceedings against Almon in 1765 began with rule nisi on
January 23rd for a writ of attachment. The writ was for the passage
in Father of Candor's Enquiry that castigated Mansfield's possibly
critical alteration of a word in one of the original informations
against Wilkes. 1° ' The case came up for argument before Justices
Wilmot, Yates, and Aston on May 1st. 102
Almon's counsel, Glynn and Dunning, urged the
unconstitutionality of attachments for constructive contempts of this
kind. Such use of attachments was "a thing never heard of'.
Moreover, judges, especially those who were peers, had other
legitimate means of defence against criticism. Almon's counsel cited
100 Case
of Wilkie (1764), [John Rayner], Digest of the Law ConcerningLibels (London:
Owen, 1770), 137. See Memoirs, supra, note 88 at 26; 33 Gentleman'sMagazine533, 534; Rea,
supra, note 25 at 101-02. Fox suggests that there is some evidence of a longer tradition of
reluctance to use the power by Common Pleas: supra, note 10 at 13-14, 88-89.
101 Rea, supra, note 25 at 81. Except where noted, the following account of the case, and
the arguments of defence counsel, is from A Collection of Scarce and Interesting Tracts, vol. 1
(London: Debrett, 1788) at 260ff [hereinafter Collection]. The same material is reprinted in
Memoirs, supra, note 88 at 18ff. The passage attached originally was the second paragraph of
p.107 of the third edition (supra, note 5), which in the Crown's copy is marked with a double
line in the margin: see the manuscript case papers in Public Record Office, KB 1/16/2, Easter
5 George M, no.2. The dating of stages in the case is from that source and KB 21/39, Hilary
to Trinity, 1765. (Some dates in Almon and other printed sources are inaccurate.) Other
information on the case is found in KB 3.
102 The delay was due to absences and illnesses on the bench. Mansfield absented himself
when the case was argued.
OSGOODE HALL LAW JOURNAL
[yoL 25 No. 3
Coke, and they referred to Camden's refusal in Common Pleas to
attach his critic the year before. They denied that Mansfield was
portrayed by Candor. But mainly they urged that through an
attachment the court would exercise the powers of party, judge,
witnesses and jury. Informations, "which went a great way," were
nothing compared to the powers now claimed by the court through
attachments. The doctrine would indeed wholly eliminate the jury,
a danger of great import, for
... the method of trial by a jury is the inherent, the native, the peculiar privilege and
glory of Englishmen;..this mode of process was originally founded on the best and the
most solid principles, and ...the wisdom of it had been approved by a long succession of
ages;...whenever it should be deemed expedient to alter it, and to adopt any other mode
of proceeding, the legislature, as it is the most proper judge of this ejediency, so it
would be the only proper authority to enforce the subjects' obedience.
They also pressed very strongly on the court a more limited point:
since Mansfield's alteration of the information against Wilkes had
been done (before counsel) in chambers, and never made a rule of
court, the pamphlet's attack on Mansfield for doing so could not be
a contempt of court!04
The case was reserved to the following term. The final
outcome was bathos, and of a sort that must have been intensely
embarrassing to Mansfield and to Wilmot, the puisne judge who was
conducting the proceedings. For Almon went unpunished, and
Wilmot's opinion was unpublished for 37 years, partly because of an
altercation over precisely the issue that was one of Father of
Candor's main points: the dangers of a court amending criminal
charges in ways favourable to the prosecution.
The original proceedings for contempt had been termed The
King against Wilkes. They concerned only the paragraph of the
pamphlet in which Father of Candor accused Mansfield of arbitrarily,
in chambers, altering the wording of the criminal information against
Wilkes. The judges apparently were divided on the merits of the
subsequent argument of Almon's counsel that what was done in
chambers could not be the subject of an attachment for contempt.
As a result the prosecution seemed bound to fail. But since the
103 Memoirs, supra, note 88 at 24.
104 Letter from Almon to Earl Temple, 15 June 1765, Grenville, supra, note 32 at 47-9,
which is, with Collection, supra, note 101 at 269, the source for the text at notes 104-06.
1987]
Scandalizing the Court
pamphlet afforded other grounds for proceeding, the judges
attempted to enlarge the charges at once by simple amendment of
the process.105 On June 14, with no preliminaries, Justice Wilmot
suddenly asked Glynn and Dunning for permission to amend the rule
to read The King againstAlmon. Almon's counsel, who had heard
rumours of the plan, were sure that Wilmot's motive was to make
possible a judgement on the many other inflammatory passages in
the pamphlet, now that the paragraph with respect to Wilkes was
useless to the prosecution. They had not made a defence to such a
broad charge in their arguments before the court, and they refused
the request. Wilmot "coaxed and bullied them by turns" for nearly an
hour: Dunning and Glynn continued to refuse. Justice Aston was
laughing, as were "above 200 people, for the Court instantly filled
after the affair began." Almon, reporting these scenes, thought
Wilmot "seemed quite mad." One of the other two judges (Mansfield
had hurriedly left the bench) thought the alteration could be made,
although it was "not the practice of the court"; the other rather
doubted it.1 06 After over three hours of fruitless appeals and threats
from the bench, Almon was free of the original charge, and had
escaped the immediate danger of a conviction through its
amendment. The Crown, and the judges, had to start again.
The law officers brought another attachment four days later,
citing much more extensive passages of the pamphlet by the Father
of Candor: most of the passages unmistakably referred to Mansfield.
Dunning thought the whole proceedings an outrage, but advised
Almon to flee London to avoid being served with the new rule: the
105 On the incident in Wilkes' trial, see supra, text at note 31. Wilmot had no doubts that
criticisms of decisions in Chambers could be scandals on the court: Wtlmot, supra, note 3 at 263.
The request to amend the rule has been attributed to an error in the process by a number of
writers, but the explanation in the text (a broadening of the charge) was the interpretation of
Almon's counsel. The manuscript court records tend to avoid giving any heading to the
subsequent second attachment, which suggests that the authorities were discovering (or
rediscovering from the cases in the 1720s and 1730s) that attachments might be worth trying
against critics who made general comments on the courts, rather than in connection with
specific cases. See Public Record Office, K.B. 1/16/2, Easter 5 George III no. 2, affidavits of
19, 25 June 1765, and my forthcoming account of the early cases.
106 All quotations from the letter cited in supra, note 104.
OSGOODE HALL LAW JOURNAL
[VCOL 25 NO. 3
publisher did so.' °7 His counsel moved the court for more time to
consider the new charges, a request which was granted. And then
the prosecution ground to a halt: a sudden change of ministry in July
put in power men with whom Almon had influence, and the
Attorney General was ordered to stop the proceedings1 08
It is not known exactly when Mr. Justice Wilmot wrote his
celebrated undelivered opinion on scandalizing the court, but internal
evidence shows that it was after the arguments on the first
attachment; it was also written before full argument on the second
one, for the obvious reason that the defence arguments on that
attachment were never heard. Wilmot nonetheless based most of his
case on the passages cited in that second attachment. Thus the
opinion in Almon's Case is less than an unreported or even
undelivered judgement. It was written without the benefit of any
109
arguments from defence counsel on the largest part of the charge.
Perhaps that is why it has a rhetorical eloquence, interrupted by
very few precedents, that has tempted generations of judges since to
quote it with relish. Wilmot's opinion is also interesting as a study
in the judicial politics of the 1760s. It was a full-scale attack on
Camden's jurisprudence.
Wilmot chose to concentrate on two specific passages of the
pamphlet: the one concerning Mansfield's agreement to the
prosecution's request to amend in chambers the original informations
against Wilkes and the one attacking Mansfield's making a rule to
show cause in Wilkes' habeas corpus proceedings. Although Wilmot
quotes the offending pamphlet as saying that Mansfield acted
107 These passages were from Enquiry, supra, note 5 at 108-20, according to Almon to
Earl Temple, [23 June 1765], (Grenville, supra, note 32, vol.2 at 65 incorrectly dated as July
1763; see Ibid., vol.3 pA6, Almon to Temple, 15 June 1765), also the source for this paragraph
of the text. However, the manuscript court records (supra,note 101) suggest that pp.108-10 of
the fourth edition (1765) particularly interested those prosecuting the second attachment. These
passages are cited supra, text to notes 91-96. Because Almon was in hiding, the court also made
a rule nisi that serving any member of Almon's household was as good as serving him
personally- this too was denounced as an innovation by Almon's counsel.
108 Memoirs, supra, note 88 at 31.
109 Hughes, supra, note 10 at 296 made the general point almost a century ago that
Almon's Case is worthless as an authority because only counsel for the Crown had been heard.
More specifically, only 9 out,of 28 pages of the opinion concern the charges on which full
argument had been heard; 14 more deal solely with issues raised by the second attachment:
Wilmo, supra, note 3.
1987]
Scandalizing the Court
"officiously, arbitrarily, and illegally" in changing the wording of
Wilkes' charge, the actual passage uses the words officiously and
arbitrarilyin separate sentences. The word illegally does not appear
at all 10 The gist of this criticism of Mansfield was that criminal
prosecutions on informations should be as fair to the defendant as
those on indictment. It was considered an important principle in
prosecutions on indictment to afford the defendant every technical
advantage, one of which was the inability of the prosecutor to
amend defective charges.111
Nowhere in the passages referred to by Wilmot is it suggested
that it was an intention of the Court to thwart justice, nor that the
court acted "corruptly, illegally, or oppressively," or "unjustly and
impiously." Wilmot used those words as a paraphrase of the tenor
of the libel: they appear nowhere in the pamphlet.112 More
important, the entire passage with respect to showing cause in
applications for habeas corpus describes the possible consequences
of what Father of Candor held to be an innovation.
Wilmot's
defence of the rule to show cause in habeas corpus actually grants
that it is an innovation, only eight years old, to afford some
protection for men unlawfully conscripted into the navy under the
wartime press law, while ensuring that no men pressed lawfully under
the terms of the draconian statute could make successful applications
for the writ!7 3 The Father of Candor had argued that in political
cases such a rule to show cause could be much abused because an
110 Several paragraphs are given as a footnote in the published version of 1802: Wilmot,
supra, note 3 at 248-49, who gives the source as pages 122-26 of the pamphlet. These page
numbers do not correspond to the relevant passages in the copies of the pamphlets filed in
court by the crown, supra, notes 101,107. The page references may have been supplied by
Wilmot's editor (his son) from a later edition.
ill The right to amend criminal informations in the manner Mansfield had done was
considered at length and upheld in 1770 by Mansfield (and his deferential brothers) in R. v.
Wilkes, supra, note 49 at 2566. Mansfield explicitly denied the analogy between indictments
and informations, on the grounds that the former were found by juries, and unamendable
except by themselves, and the latter were declarations in the King's suit. The ruling
strengthened arguments against er officio informations, now shown to be even more oppressive
than had been thought.
112 Wilmot, supra, note 3 at 268.
113 Ibid. at 259-62.
466
OSGOODE HALL LAW JOURNAL
[vCOL. 25 No. 3
unlawfully pressed man would be gone before the remedy could be
had.114 Wilmot ignored the point. But what was going on was not a
legal argument so much as continuing judicial warfare. For Wilmot
was really addressing Lord Camden. The Father of Candor's
argument about habeas corpus was the argument Camden, as
Attorney General, had unsuccessfully tried to embody in legislation
in 1758. Wilmot himself had written one of the most vehement
opinions attacking Camden's proposal at the time. And, as we have
seen, the Father of Candor may, in fact, have been Camden
himself.115
Indeed, Wilmot's real concern was less with legal argument than
with celebration of the dignity of courts, or, more precisely, his
court, and his Chief Justice. There is no doubt that the wit of
Candor and his Father and the cogent criticisms collected in the
pamphlets were uncomplimentary to Mansfield and to King's Bench.
Wilmot wrote of the necessity to "keep a blaze of Glory" around
the courts, "to preserve their Lustre and Dignity" and "to deter
people from attempting to render them contemptible in the eyes of
the Public."116 It was unquestionable that it was the general tenor
of the pamphlet that concerned him. Wilmot had been livid and
distracted during the embarrassing proceedings in open court on the
first attachment. He now gave full expression to his frustrations
with scribblers who wrote about judges: untroubled by any arguments
of counsel, he wrote his own partisan piece on the second
attachment.
Because the prosecution was dropped, the opinion remained in
Wilmot's private papers until published by his son in 1802.117 The
doctrine contained in it, however dubious it may be in light of its
history, nonetheless appeared sound to the judges of King's Bench
in the 1760s. In several cases in 1768, principally R. v. Bingley, they
used it.
114 Letter, 3rd ed., 1765, supra, note 5 at 104-5.
115 Wilmot supra note 3, at 81; supra, text at notes 37, 99.
116 Wilmot, supra, note 3 at 258, 270.
11 7
Supra, note 8.
Scandaliing the Court
1987]
VI. HUNTING MANSFIELD: R. v. BINGLEY (1768-1770) AND
JUNIUS
Bingley was a fearless, indeed reckless, Wilkite, the kind of
imprudent self-dramatist and zealot who so often establishes a
constitutional principle.118 He was the publisher of a continuation
of the North Briton while Wilkes was in exile. In issue No.50, 28
May 1768, Bingley printed an open letter attacking Lord Mansfield
for his conduct toward Wilkes in the past. This was only ten days
before Wilkes, now returned, was due to appear before Mansfield
to answer his outlawry 1 9 The writer's avowed purpose was to
convince the Chief Justice to pass a moderate sentence on the
popular hero and thereby earn the gratitude of the people, but he
also accused Mansfield of acting the part of counsel for the
prosecution in the earlier trials of Wilkes. And he added,
I, my lord, must take the liberty of acquainting you, that the humour of the people is at
present such, that they will not patiently see the rigour of the law exercised against Mr
Wilkes; much less the law stretched and wrested to make him feel the weight of
ministerial vengeance.
These words appeared in one of the most tense months of the
Wilkite agitation. There was still great anger in London against the
118
A brief biographical note, "A Forgotten Journalist", appeared in The Athenaeum (20
May 1899) at 626. A bookseller and journalist, he was described as "a man of strong natural
understanding, though not much assisted by literature....of the strictest integrity, but
unfortunately possessed an habitual irritability of temper, which proved a perpetual discomfort."
He was married, apparently happily, and had at least four children. He died in 1799 at the age
of sLxty-one.
119 Bingley's case is outlined in Rea, supra, note 25 at 155-56, 164-65, 168, and the context
in his chapter IX.
120 The Case of William Bingley, Bookseller, who was Two Years Imprisoned by the Court of
King's-Bench without Tria Conviction, or Sentence...compiledby a Barristerof the Middle-Temple.
To which is added an Appendix (London: Printed for the Benefit of William Bingley, and sold
by Davis, Woodfall, William, Woodgate, Tomlinson, Steel, 1773) at 6 [hereinafter Case]. This
pamphlet, in which were reprinted Bingley's inflammatory North Briton pieces and copies of
affidavits, together with his interpretation of the proceedings and probably a brief for his
counsel, was originally published under a slightly different title in 1770 (supra, note 2). I have
used the 1773 edition (the copy in the Harvard Law School Library) because it contains all the
material in the first edition, somewhat rearranged, and also gives some additional information
about the proceedings on attachment.
468
OSGOODE HALL LAW JOURNAL
[voL. 25 NO. 3
Horse Guards and magistrates for the "St. George's Fields
Massacre", a day-long riot on May 10th in which six or seven
unarmed supporters of Wilkes were killed by troops.12 1 Courtrooms
were sure to be packed with aroused spectators in the coming weeks
in any case, even without the incendiarism of Bingley.
When Wilkes appeared before Mansfield a few days later, on
8 June, Horace Walpole reported that "The judges went down by
nine in the morning, but the mob had done breakfast still sooner
and was there before them, and as judges stuffed out with dignity
and lambskins are not absolute sprites, they had much ado to glide
through the crowd."122 Large numbers of troops were held in
readiness near Westminster Hall, and Mansfield, presumably
heartened by their presence, delivered one of his most famous
speeches, in defiance of intimidation by mobs and by the press:
"Whoever the writers are, they take the wrong way. I will do my
duty unawed."-12 Mansfield even declared that his own death at the
violent hands of a mob inflamed by libels might shock the nation to
its senses, and that he had composed his mind to die if necessary for
the sake of his country. But he also noted in passing that some of
his anonymous detractors in the press had already been brought
before the court. Bingley, not Mansfield, would be the martyr.
If Mansfield or the Cabinet were looking for a clear opportunity
to use the doctrine that had been so contested in Almon's case,
Bingley obligingly provided it. His pamphlet, Walpole observed, was
"outrageous enough to furnish the law with every handle it could
want."124 The particular handle chosen was another attachment for
contempt. Within a week of publication the Attorney General
moved King's Bench for an attachment against Bingley and other
printers and vendors of the article, and they had already appeared
in court by the time Mansfield dealt with Wilkes' outlawry.
121 Rude, supra, note 26 at 49-56.
122
Walpole to Mann, 9 June 1768, Walpole, Correspondence,supra, note 22 vol.23 at 28-29.
123 R v. Wilkes, supra, note 49 at 2562.
124
Supra, note 122.
469
Scandalizing the Court
1987]
-.. he Tyrannv of Arbitrarw
"Tubhliv
"!(
and -..
;~
~
.
-. 0r
I-i
-
,
(i)t
l go l
jvilI
I'
"I
-
-
Figure 2
William Bingley in prison for scandalizing Lord Manfield. From
The Extraordinary Case of William Bingley, Bookseller (1770),
frontispiece.
470
OSGOODE HALL LAW JOURNAL
[VOL 25 NO. 3
The others put up bail but not arguments; Bingley turned up in
King's Bench on 7 June determined to reiterate the constitutional
claims already heard in Almon's Case. 25 An "eminent barrister" had
told him that both the proceedings for attachment and the affidavit
on which it was founded were flawed; that attachment for an alleged
libel was "a d[amned] illegal mode, and that it was a scandal to this
country it should be exercised in the case before us."126 But he had
advised Bingley to submit, or leave the country until the Wilkite
crisis passed, and Bingley's attorney had concurred. The printer
scorned such timidity, and therefore on 7 June rose to oppose the
Attorney General's motion himself, brief in hand, "with faultering
accents, peculiar to young pleaders."12 7 Bingley was determined to
emulate Wilkes in making King's Bench a platform for a discourse
on constitutional law; the bench was determined he should not.
Mansfield refused to let Bingley read a prepared defence,
warning him that it might be "more offensive than the paper
itself.'1 28 Justice Aston insisted that counsel first examine what was
to be said, suspecting another libel, and denied the right of the
defendant to address the court himself. Finally, Bingley's attorney
and barrister voluntarily stepped forward to tell the bench that
Bingley's defence was indeed quite improper to be read. Mansfield
then informed the other printers and vendors who had been attached
that they could try to recover their costs in suits against Bingley
himself, advice that Bingley construed as a judicial expedient which
could have the effect of a virtually unlimited fine.
Proceedings were to continue two days later 29 , but Bingley was
not to be denied his starring role. He published in the interim the
speech he had been prevented from delivering in court. In it he
125 For what took place in court we are largely dependent on Bingley's account: Case,
supra, note 120 at 24ff. On the attachments against other printers and sellers, see infra, note
132.
126 Case, Supra, note 120 at 25.
127
Ibid. at 26.
128 Ibid. at 27.
129 The rule nisi was enlarged to 9 June, apparently on the motion of the Attorney
General: Case, supra, note 120 at 30. See also Public Record sources cited infra, note 132.
1987]
Scandalizing the Court
471
reiterated the charges against Mansfield of prejudicing Wilkes' trials,
of doing so to protect the Secretary of State from Wilkes' lawsuits,
and of deliberately delaying the reconsideration of Wilkes' outlawry.
And he castigated Mansfield in terms now familiar:
He talks of precedents. My lords, the precedents are not similar they are not warranted
by law;, but were first introduced by a very bold and violent judge, whose authority it is
not honourable to any other to follow. But this plea of precedent comes with a very bad
grace from his lordship, who is well known to have set his face against precedents, when
they did not serve his purpose, and to h - repeatedly declared, whenever they have been
urged, that he would make a new one.1 b
The peroration was a refusal to answer any questions posed by
interrogatories on attachment:
There can be no pretext for denying me a trial by jury. The way of attachment is a StarChamber process; to which I will not submit: it is unlawful; it is unprecedented in such
a case.
13 1
My lords, I am an Englishman, and I demand, as my birth-right, a trial by jury.
This second publication was instantly answered with a second
attachment for contempt. If Mansfield wanted to widen the doctrine
of examining libellers on interrogatories, Bingley must have seemed
heaven-sent. Bingley seems to have been no less grateful for Lord
Mansfield: he found in the issue a chance to make his name as a
defender of English liberty, and explicitly argued the danger of the
precedent that Mansfield was trying to set. The bar clearly were
putting all bets on the Chief Justice rather than the impecunious
printer, and at least four other printers132and vendors of the article
put in bail to submit to interrogatories.
130
]bid. at 32.
131 Ibid. at 38.
132 On this aspect of an attachment see infra, note 137. The other defendants were the
booksellers Staples Stear, and Williams and Pridden, the first for publishing the NorthBritain
Extraordinary No.4, the two others for selling it. Another, Brett, had sold Bingley's North
Britain no. 50. Stear, Brett, Williams, and Pridden actually answered interrogatories. They all
offered apologies in November, when Stears was sentenced to three months imprisonment,
Williams fined 13s.4d., Pridden and Brett 6s.Sd. Other vendors also proceeded against were
C.Corbett, W.Nicoll, T.Bowen, and FJones. PublicAdvertiser, June 10; SL James Chonicle June
9-11, Nov 5-8; 38 Gentleman'sMagazine 298; 37 London Magazine 607, 700; 11Annual Register
122, 124, 188; 8 State Trials 60; Walpole, Correspondence,supra, note 32 vol.23 at 29 note 5;
manuscript court records in the Public Record Office, KB 21/40, Trinity 8 George III,
Michaelmas, Hilary and Easter 9 George III; KB 21/19 Hilary, Trinity 8 George III, Hilary 9
George III; KB 1/16/1 Michaelmas 5 George III; KB 1/17/2, Trinity 8 George III, Michaelmas
OSGOODE HALL LAW JOURNAL
[VOi- 25 No. 3
Bingley surrendered to the attachments on 11 June, and
ostentatiously refused bail on the grounds of the illegality of
attachments for contempt in cases such as his. In August, however,
133
he was bailed at his request until 7 November, in the new term.
This next appearance inKing's Bench was better staged, if we are
to believe Bingley's account. Bingley was asked to enter into
recognizances to answer interrogatories; refused on constitutional
grounds to do so; and again tried unsuccessfully to address the court
with his (now more sophisticated) legal arguments against
attachments and the dangerous precedent that was being set in his
case.134 A smiling Mansfield told him he came too late: the options
were to give bail to answer, "otherwise you must be committed; must
he not Mr.Dunning? 0 yes, my lud, to be sure, my lud, said the
obsequious solicitor. 135 The bar was laughing as Bingley announced
his determination to be imprisoned for life if necessary, until the
smiles on the bench ended:
Mr Justice Aston...began to be exceedingly enraged, and said, he would not sit on the
bench to be sportedwith, and also, that the mode of proceeding was according to the
9 George In; KB 1/17/1, Hilary 9 George III; IS 11/13/228.
133 Case, supra, note 120 at 106.
134 Subsequently published in ibid. at 45-76. Quoting Coke, Hale, Hawkins, Magna Carta,
the Mirror,and statutes and cases, he argued that his offence was not in the face of the court
nor in obstruction of its process; that there was not a single ancient or indeed any precedent
for a case such as his; that interrogatories in Star Chamber were founded on statute and were
not justified at common law, that Lilburne's sentence following interrogation was subsequently
reversed by the Lords as unconstitutional, unjust, and illegal. He cited six cases to show that
libels on courts were tried on indictment or information, not by attachment. His main
arguments were that the presumption of innocence required that he not be forced to accuse
himself, and that interrogatories removed almost all the procedural advantages a defendant
might claim, notably those associated with jury trial: "if Iam committed for not answering, until
I do answer, and should afterwards submit to answer, it will be a confession extorted by torture"
(at 60). He also emphasized the advanced Whig doctrine that juries were judges of law as well
as of fact. Many of these arguments had already appeared in print by the time Bingley
published in 1773 (e.g. in Candor's "Postscript", infra, text at note 143). It is likely that Bingley's
arguments were considerably improved before he published them.
135 Dunning was now Solicitor General; he had, of course, been Almon's counsel in 1765.
This jibe was balanced by Bingley's later thanks for Dunning's speech on his behalf in
Parliament: infra, text at note 139.
1987]
Scandalizing the Court
custom of the court, and the law of the land, and that the parliament would meet in a
few days, who, he dared say would relieve him if he was aggrieved. I 3
When Bingley again insisted on a jury trial as the birthright of an
Englishman, Aston roared for the tipstaff until the man appeared
and took Bingley off to prison once more.
It is difficult to discourage a martyr. Released in December on
bail to appear the next term, Bingley made his third appearance at
King's Bench in January 1769. He again refused to answer
interrogatories, and was committed to King's Bench prison for
contempt l3 7 From prison he published his sworn affidavit that he
would not "at any time, WiTHOUT TORTURE, answer to any
interrogatory tending to accuse himself, or any other person..."
involved in publishing his paper 38 Bingley petitioned Parliament,
where Dunning, Almon's
counsel in 1765, spoke against
interrogatories, although most members apparently were prepared to
agree that the custom was sound and that courts needed such
powers.139 Among the public Bingley was beginning to enjoy a little
attention of the variety showered on Wilkes: an anonymous
gentleman presented him with a gift of plate for "endeavouring to
support the constitutional right to trial by jury."140 Bingley also had
hopes that his case, as well as his expenses, would be taken up by
the Wilkite movement. But Wilkes wanted such funds for himself,
136 Case,supra, note 120 at 43 (emphasis in original). Aston's behaviour prompted Bingley
to quote Whitehead (supra, at note 2).
137 P.RO., KB. 21/40, Hilary 1769; 11 AnnualRegister 196; 38 Gentleman'sMagazine 586;
37 London Magazine 701; Public Advertiser 7 December 1768; 39 Gentleman's Magazine 53; 38
London Magazine52. The procedure in contempt cases was explained to Mr Justice Yates (who
said he was unfamiliar with the practice) during the bail hearing. The person attached was
summoned in the vacation between terms before the Master of the Crown Office, who
conducted and reported the result of the interrogatories in the term following, when the court
proceeded to judgment if there was a confession, or discharged if the contempt was purged
(Case, supra, note 120 at 79-80). Details of the procedure as it stood by 1828 are to be found
in Gude, The Practiceof the Crown Side of the Court of King's Bench, vol.1 (London: Sweet,
Maxwell and Stevens & Sons, 1828) at 256-59.
138 Case, supra, note 120 at 93-96; 39 Gentleman'sMagazine 108.
139 Case, supra, note 120 at 99; Rea, supra, note 25 at 164.
140 39 Gentleman's Magazine 161.
474
OSGOODE HALL LAW JOURNAL
[VOi- 25 NO. 3
and Bingley
remained in prison, where he kept publishing for two
141
years.
Finally, in May 1770, King's Bench agreed to the Attorney
General's request for Bingley's discharge, although he had never
purged the contempt, on the grounds that he had suffered as much
as he might have if he had actually been found guilty of contempt
in publishing his insults to Mansfield. Bingley's martyrdom was
becoming an embarrassment: his case was mentioned in petitions
from, among others, the corporations of London, Bristol, and
Southwark. 42
Although Bingley was imprisoned for the contempt of refusing
interrogatories, the cause had been his previous attachment for
scandalizing the court, and he had kept that issue before the public.
Shortly after Bingley's release in 1770 Candor again appeared in
print and attacked such attachments in an extended version of the
arguments that had been used in Almon's Case.143 He had no
admiration for Bingley's "libellous trash," but he deplored the
doctrine by which Bingley had been imprisoned.
In measured, temperate words, with only touches of irony
directed at Mansfield, Candor made the constitutional and legal case
against the doctrine. Such a constructive contempt, he argued, made
an accused person his own accuser; it allowed judges to usurp the
roles of party, prosecutor, and jury. It could only be dangerous to
141 He was unsuccessful in persuading Mansfield to allow him better prison
accommodation, where he could carry on his business as a publisher more satisfactorily: Case,
supra, note 120 at 111-21; 39 Gentleman'sMagazine 316; 12AnnualRegister 107-08, 153; Public
Record Office, TS 11/73/228. The argument over funding Bingley caused a major split in the
Wilkite movement, from which it did not recover.
142 P.R.O., K.B. 21/40, Easter 1770 Case, supra, note 17 at 126-27 The Letters of Junius
(ed. John Cannon, Oxford: Clarendon Press, 1978) at 211. In May 1769 a petition of the
freeholders of Middlesex had denounced the "Perpetual Imprisonment of an Englishman
without Trial, Conviction, or Sentence, by..AITACHMENT..." (Rea, supra, note 25 at 164).
Candor later wrote that "the crown thought the matter might by and by occasion some serious
complaint, and therefore he was let out, in the same contumacious state he had been put in,
with all his sins about him, unanointed and unannealed." Another Letter, infra, note 143 at 189
("Postscript").
143Another letter to MrAlmon inMatter of Libel (London: Almon, 1770) in the "Postscript"
[hereinafterAnotherLetter].The style, view of the constitution, and knowledgeable but not overtechnical discussion of legal doctrine are very similar to those of the earlier Candor pamphlets
often attributed to Camden. The "Postscript" was reprinted by Bingley as a second appendix
(with deletions of all critical references to Bingley himself) in his 1773 Case, supra, note 120.
1987]
Scandalizing the Court
prevent the public "by that terror" from criticizing what was
erroneous in the administration of public justice. Judges, concluded
144
Candor, are not "above the inspection of their country."
Interrogatories, if enforced in such a case, would establish an
"English inquisition"; they contradicted "the whole system of our
law."145 The only constitutional response to a libel such as Bingley's
was a jury trial. Moreover, Candor declared that was the only
possible legal response. Contempt was proper and necessary where
an immediate interference with the administration of justice was the
issue, but the common law did not support the use made of it
against Almon and Bingley. There were no ancient precedents, and
the earliest use of the doctrine that Candor could trace was a case
in 1723: it was therefore clearly not law. A libel on a judge or a
court was certainly properly punished:
It is, if any thing be, the proper object of the information ec officio. In God's name, let
the treatment of any judge, or of any judgement, with causeless banter, satire, scorn,
reproach, or ignominy, and the libelling or calling of either needlessly in question, be
scourged with this bitter rod of criminal vengeance. But the supposed ?Jender, should
not, nay cannot, be deprived of, or punished without, his trial by jury.
Such offences were neither immediate outrages nor the use of force:
they could well wait for a jury trial. And he pointed out that in both
Almon's Case and Bingley's Case the courts were drawn into
"ridiculous dilemmas", as they could not silence a courageous
opponent. Even the mob was well aware of the causes of the
government's and bench's "disgraceful retreats," the result of "rash
147
and inconsiderate salliers beyond the ramparts of the law..."
Bingley's appears to have been the last attachment for
scandalizing an English court for the rest of the eighteenth century,
and Fox attributes that fact in large measure to the disrepute his
imprisonment and release brought upon the procedure. In spite of
Almon and Bingley, or rather because of them, the contempt power
of scandalizing the court was thus very nearly stillborn. By 1770
144 Another Letter, at 173.
145 Ibid. at 178.
146Ibid. at 171. The 1723 case was fyatt (or Middleton); see supra, note 21.
147 Ibid. at 185-86.
476
OSGOODE HALL LAW JOURNAL
[VOL. 25 No. 3
Mansfield was being vilified with impunity, in even stronger language,
in the London press. The anonymous polemicist "Junius", the most
famous political pamphleteer of the eighteenth century, began his
virulent attack on the Chief Justice in November 1770 with the
words "Our language has no term of reproach, the mind has no idea
of detestation, which has not already been happily applied to you,
and exhausted."148 All the accusations made by Candor and the
Father of Candor against Mansfield of demeaning the common law,
subverting the constitution, acting as the partisan of the government,
and indulging tyrannical Jacobitical tendencies were now repeated in
stronger terms and in the most direct language. As Junius wrote
privately to his printer before publication, "I don't think we run the
least Risque. We have got the Rascal down. Let us strangle him if
it be possible."149 And Junius particularly reproached Mansfield for
his treatment of Bingley:
The sufferings and firmness of a Printer have roused the public attention. You knew
and felt that your conduct would not bear a parliamentary inquiry, and you hoped to
escape it by the meanest, the basest sacrifice of dignity and consistency, that ever was
made by a great magistrate. Where was your firmness, where was that vindictive spirit,
of which we have seen so many examples, when a man, so inconsiderable as Bingley,
could force you to confess, in the face of this country, that, for two years together, you
had illegally deprived an English subject of his liberty, and that he had triumphed over
you at last? Yet I own, my lord, that your's is not an uncommon character. Women, and
men like women, are timid, vindictive, and irresolute. Their passions counteract each
other, and make the same creature, at one moment hateful, at another contemptible. I
fancy, my Lord, some time will elapse bN8re you venture to commit another Englishman
for refusing to answer interrogatories.
In most of the earlier prosecutions of Junius, which were some
of the most famous of English state trials, London juries had refused
to convict1 51 Mansfield and the government were clearly not
anxious to risk such an acquittal again: no criminal informations
148
The Letters of Junius (supra,note 142) at 206-17, Letter XLI, 'To the Right Honourable
Lord Mansfield, 14 November 1770." The identity of Junius is still unknown.
149 bid. at 365.
150 Ibid. at 210-11 (the opposition had been calling for a parliamentary inquiry into
Mansfield's conduct in King's Bench at the time Bingley was released). There is a more
flippant reference to Bingley in a Junius letter of March 1769: Ibid. at 51. In 1771 Junius was
prepared to use Bingley to print a letter that Woodfall, his usual publisher, might consider too
dangerous: Ibid. at 371.
151 For the context see Rea, supra, note 25 at 174-87.
1987]
Scandalizing the Court
were exhibited against the printers of this savage attack, in spite of
the fact that it was published and republished by a great many
printers.15 2 Moreover, Junius' prediction was correct, and no attempt
was made to proceed against the printers by attachment on the
grounds of scandalizing the court. A political prudence on the part
of the judges, if not a legal one, now began to reinforce the
constitutional argument being developed by Candor, Bingley, Junius
and others against this "English inquisition."
In a curious and famous episode in the House of Lords, it was
perhaps Lord Mansfield himself who finally made the doctrine of
scandalizing the court untenable for half a century. He was
defending his position with respect to libels - that the identification
of a libel was for the judge, as a matter of law - in a debate in
December 1770, following several famous trials and acquittals of
Junius' printers and publishers for other libels. Lord Camden, still
deeply opposed to the doctrine of attachments for contempt,
surprised Mansfield with six sharp questions on libels, including a
request for precedents, and the period of history from which they
were taken. To the dismay of some government supporters, but
perhaps wisely under the circumstances, Mansfield utterly refused to
debate the questions.
His choice of words, however, was
unfortunate. Whether bitterly sarcastic or carelessly flippant, in his
reply he borrowed the words of the unfortunate Bingley. The Chief
Justice declared that he would "not answer interrogatives."153 It was
hardly decent, thereafter, for him to demand that a defendant in
King's Bench should do so. Walpole expressed the view of many
when he wrote to a friend a week later,
If we have nothing else to do after the holidays, we are to amuse ourselves with worrying
Lord Mansfield, who between irregularities in his court, timidity and want of judgement,
has lower q4 himself to be the object of hatred to many, and of contempt to
everybody!
152 Ibid. at 190.
153 16 ParliamentaryHistory 1322.
15 4
Walpole, Correspondence,vol.23 supra,note 32 at 256.
478
OSGOODE HALL LAW JOURNAL
[VOL. 25 No. 3
And by 1773 Bingley, a free man but now a bankrupt, could
republish with impunity all his earlier attacks on Mansfield, complete
with colourful additions:
This much may be inferred, that lord Mansfield possesses all that vindictiveness of spirit,
and malignancy of heart, peculiar to the generality of his countrymen. I cannot reconcile
his lordship's conduct with my notions of law, justice, or humanity.... But when we re
the whole of this J[acobite] lord's conduct, our wonder, in some measure, ceases...'&
The odium in which the doctrine of attachments and interrogatories
for constructive contempts now stood was perhaps the principal
reason there were no further attempts to use it in the eighteenth
century. There were attacks on judges, and on their courts, but the
summary power of contempt for scandal by strangers apparently was
not used. Instead, defendants were tried as Candor and all the
other critics had suggested they should be, on indictment or
information, both involving jury trials 56
VII. REDISCOVERING WILMOT: 1792-1821
For a time the nascent constitutional inhibition against using the
summary power of contempt was strengthened by the arguments of
some of the most prominent lawyers in England. Thus Erskine,
celebrated for his defence of the liberties of free born Englishmen
in many leading state trials, wrote an opinion in 1785 asserting that
contempts punishable by attachment must be in direct violation or
obstruction of some previous decision of the court which issues the
attachment.15 7 He took the opportunity again in 1806, as Lord
Chancellor, to raise doubts about the doctrine of constructive
155 Case, supra, note 120 at 122-23. Bingley reprinted Junius' letter to Mansfield as an
appendix.
156 This statement is based on Fox's analysis and Bingley's remark later in the century that
no such proceedings had been taken since his own release from prison: Fox (1920), supra, note
10; Bingley, "A Sketch of English Liberty" (broadsheet, 1793), republished in the 1974 reprint
of Case (supra, note 2). I am currently engaged in research in King's Bench records that will
give a complete inventory of attachments for contempt for scandalizing the court, and of
prosecutions for libels on justice.
157 8 State Trials 83 at 84.
1987]
Scandalizing the Court
contempts for scandalizing the court 5 8 But there were by then
some clear signs that Wilmot's undelivered judgment was being
resurrected, and a preliminary examination suggests that this was for
both general political and specifically legal reasons.
The legal reason was the significant change in the law of libel.
For attacking a court was punishable, if not as a contempt, as
seditious libel of justice, upon conviction on indictment or
information. Juries were unreliable, as the prosecutions of Junius
had shown in the 1770s: but as long as they could be packed, and
as long as the judges reserved the identification of libels to
themselves as a matter of law, some convictions could be had.
However, in 1792 Fox's JuryAct passed into law under the approving
eye of Camden. While not entirely an explicit repudiation of the
doctrine, its purpose was clear: to force judges to assure juries that
they could decide the entire issue as a general verdict.
It was no longer possible to be at all sure of what a jury would
do. The acquittals of members of the London Corresponding
Society in 1794 on charges of high treason showed that, in London
at least, juries might ignore the bench on seditious libel charges as
well. That bench was itself increasingly the subject of virulent
criticism again; this time by Jacobins. And the period of the
Napoleonic wars (1792-1815) was pre-eminently a crisis of legitimacy
for the state as it was constituted: an unreformed and
unrepresentative commons, a Chief Justice once more in the
Cabinet, a bench richer than it had ever been from patronage
appointments and the extraction of fees. The time had come to
begin the process of resurrecting attachments, interrogatories, and
summary conviction for scandalizing the court. There had been no
argument or judgement in Bingley's case and apparently no report
of the judgments against the other printers and vendors of his
attacks on Mansfield. But by 1802, with the publication of Wilmot's
opinion about Almon, there was something to work with.
The doctrine of scandalizing the court apparently began its relegitimation in the case of Sir Francis Burdett, one of the most
popular patrician advocates of Parliamentary reform in a period of
virulent anti-democratic reaction in Parliament. In 1810 virtually the
158
Exparte Jones (1806), 13 Vesey Jr 237 at 238-39.
480
OSGOODE HALL LAW JOURNAL
[VOi- 25 No. 3
entire population of London was opposed to Parliament, and the
army was suspected of disaffection, but any suggestion of the reform
of Parliamentary representation was regarded, by Parliament, as near
treason. Burdett, a moderate radical, had the temerity to criticize the
House of Commons for committing to prison another London
advocate of Parliamentary reform. Burdett's expressed view that their
action was illegal led to his imprisonment in the Tower for a
contempt of Parliament.
By this time the earlier generation that had opposed the
doctrine of summary punishment for constructive contempts was
disappearing: Erskine was retiring into private life, and Camden had
died in 1794. The finding of Parliament that Burdett could be
punished for breach of privilege was opposed almost solely by Sir
Samuel Romilly. One of the most brilliant members of the bar, he
had already embarked on his attempts to repeal the hundreds of
capital statutes in force in England. Romilly recapitulated to a
largely hostile House the arguments of the earlier generation: the
House makes itself accuser, judge, and party; the accused is deprived
of trial by his peers; the doctrine was a relic "from bad times" and
"instances of extraordinary159powers exerted and submitted to cannot
in such a case make law."
Significantly, Romilly argued that the proceeding for a breach
of privilege was equally inappropriate, in the form of an attachment
for contempt for scandalizing, in ordinary courts of law. In part this
was because what precedents existed were being examined for their
relevance to the Commons; in part, perhaps, because the courts
themselves were thought to be resuscitating the doctrine. The House
voted nonetheless for Burdett's committal; his house was broken into
and he was taken to the Tower, to the outrage of popular opinion.
Romilly noted, "The soldiers were grossly insulted and attacked...they
fired upon the people, and several persons have been killed."160 In
Burdett's subsequent lawsuit against the Speaker of the House, the
159 16 ParliamentaryDebates (lst series) at 478-87.
160 Samuel Romilly, Memoirs, 2nd ed., (London: John Murray, 1840), vol.2 at 318. On the
circumstances, see E.P.Thompson, The Making of the English Working Class (Harmondsworth,
Middlesex: Penguin Books Ltd., 1968) at chapter 13; J.R.Dinwiddy, "Sir Francis Burdett and
Burdettite Radicalism" (1980), 65History 17-31, at 18, 21; John Stevenson, PopularDisturbances
in England 1788-1870 (London: Longman, 1979) 184-89.
1987]
Scandalizing the Court
481
Attorney General undoubtedly had such violence in mind when he
argued,
If it were certainly known that a man might invent and publish libels upon Courts of
Justice for any matters done by them which displeased him, and that he would be free
from punishment till the tardy process of the law, (for so it may be called on such an
occasion), in its ordinary course of proceeding by indictment, could reach him, men
would be found daring enough to hazard the event of that distant day, and to offer to
courts of Justice those insults, which in the present day there is diffyIty enough to
restrain, notwithstanding all the guards by which they are surrounded.
Scandalizing the court still had an unimpressive pedigree.
Parliament investigated as a result of Burdett's case, and found only
a few doubtful precedents; for the issue of breach of privilege there
was consequently heavy reliance on Wilmot's opinion in Almon 62
In times of civil unrest reminiscent of the 1760s, both governments
and courts found Wilmot's outlook and language attractive. Justice
Fletcher of the Irish Court of Common Pleas was an exception when
in 1813 he had the temerity to question Wilmot's "vain and silly
declamation", calling it
the hasty and warm ebullition of a mind fraught with arbitrary notions, irritated and
excited by a severe attack upon his whole Court, especially upon his venerated and
adored Chief Justice, and the very reverse of what it is called - a considered, digested,
and ulterior opinion....[it is]a mere unconnected, unsupported dictum.
Wilmot had been "led away by his passion", and in other judgments
was far from infallible, added Fletcher.lt 3
He was rebuked. His Chief Justice concluded for the majority
with an opposed decision, and added:
Before I conclude, let me compose the hitherto undisturbed ashes of Lord Chief Justice
Wilmot, of whose character and opinions much has been misconceived. On the present
161 Burdett v. Abbot (1811) 14 East 1 at 85-86, 104 ER 501 at 533 (KB.). The case did not
turn on Almon's Case, which was not mentioned in the judgment, although it figured
prominently in argument (infra, text at note 164). The Attorney General misrepresented the
difficulty of proceeding with a jury trial: a criminal information was (as Candor had pointed
out, supra, text at note 66) an immediate remedy, avoiding the delays of prosecution on
indictment.
162 Fox, supra, note 10 at 23.
163 Fletcher also argued that Mansfield indeed had made innovations in the law, and that
the central issue was trial by jury, "the noblest bulwark of our Constitution." Taaffe v. Downes
(1813), reported in John Hatchell, A Report of the Arguments and Judgment Upon the Demurrer
in the Case of Henry Edmund Taff, Esq. Against the Right Hon. Win. Downes, Lord ChiefJustice
of the King's-Bench (Dublin: Cooke, 1815) at 158-61.
OSGOODE HALL LAW JOURNAL
[VOL. 25 No. 3
occasion, I cannot humiliate that great man's memory, by entering into a laboured
vindication of one of the purest judicial characters, that ever adorned Westminster Hall.
There Wilmot has ever been considered 'Clarum et venerabile nomen', his opinions and
judgments are there, as I hope they will be here, of high authority;, and are treated with
respect, whenever they are cited; as in the late case of Burdett v. Abbot, when the
AttorneAfeneral resorts to his admirable argument, as he calls it, in The King v.
Almon.
The Chief Justice did not examine Wilmot's precedents. But then,
Wilmot had cited none that established what he had claimed 65
VIII. CONCLUSION
Through such judicial enthusiasms the common law doctrine of
scandalizing the court had its origins. It was first judicially recognized
in the passing remark of a puisne judge in 1821, in R. v. Clement.166
But it was only with R. v. Gray in 1900 that Wilmot's shaky opinion,
written in the crisis of the 1760s, was sanctified as a judgment by
the English bench.1 67 The reasons have yet to be explored, but they
appear to include the discrediting of informations ex officio, which
fell into desuetude, and the disturbed politics of late Victorian
England. But what does the first century of the doctrine's history,
to 1821, suggest? Perhaps that judges read the needs of the times;
or that precedent is shaped by political exigency. Probably that
scandalizing the court was conceived by two of the most repressive
and reactionary lawyers of Walpolian England and given a false
pedigree by a judge anxious to criticize another judge and to
164 Ibid., at 216-17, Norbury L.CJ. (emphasis in original). Norbury's paise of Wilmot
continues for another page.
165 Lord Norbury also incorrectly assumed that the need to change the heading of the
process in Almon's Case had arisen from a clerical error, and that defence counsel admitted
that the Father of Candor's words were a "gross" libel. Neither assumption, as we have seen,
could have been farther from the truth. Norbury gained a reputation himself, as a hanging
judge, for-his zeal in dealing with disaffected Irish peasants.
166 4 B. & Aid. 218 at 233 per Holroyd J. The Clement trial resulted from publication of
the proceedings in the trial for high treason of Thistlewood and others who had plotted the
assassination of the Cabinet in 1820.
1 67
Supra, note 7. There was convincing criticism of the opinion at the time: see Hughes
and Fox, both supra, note 10; Fox at 111. The timing of this resurrection of scandalizing the
court is also of interest: I shall treat it in another article dealing with the nineteenth century.
1987]
Scandalizing the Court
483
vindicate the political indifference of his Chief Justice, who sat in
the Cabinet. What is certain is that scandalizing the court was a
doctrine deeply opposed by three of the most prominent lawyers of
the age who were committed to the free expression of political
opinion: Lord Camden, Lord Erskine, and Sir Samuel Romilly.
For a time, well-reported legal and constitutional arguments and
the heroics of a self-martyred printer discredited the doctrine of
scandalizing the court and kept both the courts and the public aware
that there was meagre if any judicial authority for what had been
done to Bingley and others in the 1760s. For a time, too, the
political organization of Wilkite politics and the ebullient celebration
of a free press made it possible to criticize the politics of the
judiciary in the most direct terms, rather than in the coded language
of irony, allusion or innuendo that prevailed before and has often
prevailed since. Yet the constructive contempt of scandalizing the
court was not dead. The doctrine, as we have seen, began to be
resurrected by judges during the massive conservative reaction of
the English bench and government in the period of the French and
Napoleanic wars. In a period when the slightest move toward
representative democracy was repudiated as seditious, habeas corpus
was repeatedly suspended, and trials for treason and seditious libel
again became a crucial concern of the state, the professional
reputation of a dead judge, and nothing more, began to act as the
imprimatur for his doctrine in Almon.
The constructive contempt of scandalizing the court endures, in
modified form, to the present. The later history of the offence is a
complex one, as different parts of the common law world drew
different conclusions about Almon's Case and those later judgments
that cited it, and as different benches endorsed or abandoned it at
different times. But some general conclusions are suggested by the
history of the first hundred years of the offence. One is that judges
persuaded by what they think are reasons of state in times of what
they believe to be crisis may be too ready to assume broad and
dubious powers. Another is that later judges ignorant of the history
and political context of cases may finally confer legitimacy on powers
that are not law, for similar reasons or simply because of the filial
piety that is never absent from a system of precedent. Why the
English bench did so with the doctrine of scandalizing the court may
partly be explained by examining the politics of the judiciary in the
484
OSGOODE HALL LAW JOURNAL
[VoL
25 NO. 3
eighteenth century. By that I mean not only its evident commitment
to certain political principles and hostility to others, but also its
profound unwillingness to admit the right of a wider public to debate
the legitimacy of its decisions.
Finally, the early history of scandalizing the court suggests that
the limit of judicial authority and its degree of immunity from
criticism are decided, in the end, neither by the bench nor by the
law, but by the readiness of the public to claim the right to speak
about its courts, and perhaps especially by the willingness of critics
of the judges to risk imprisonment in their assertion of that claim.